Exhibit 10.19
AGREEMENT
THIS AGREEMENT is entered into and effective this 30th day of
September, 2002 by and between Vital Living, Inc., a Nevada corporation ("VL")
and Medical Resource, LLC, National Provider Network, both of which are
subsidiaries of A.C.E. Health, LLC., a managed health care company (hereinafter
"PPO").
RECITALS
1. VL is in the business of among other things developing and
distributing a proprietary line of nutritional products,
marketed under the name Essentum(TM) and Essentum N.P. for use
by heart and vascular patients. ("Product(s)". This
"Agreement" is for the sole purpose of Essentum(TM) and
Essentum N.P. and any other products that may be mutually
agreed to by the parties.
2. Medical Resource LLC., through it's own national PPO and its
PPO's affiliates operate a preferred provider network,
National Provider Network (NPN).
3. PPO, directly or through its networks, is affiliated with in
excess of 300,000 physicians.
4. PPO, directly or through its networks, is affiliated with in
excess of 30,000 ancillary facilities and hospitals.
The Company also wishes to assist in distributing the Products to
its PPO, PPO affiliates, medical facilities and other distribution channels,
both parties agree to develop a marketing agreement, which will identify
specific target groups and providers. The parties therefore agree to the
following terms and conditions:
TERMS AND CONDITIONS
1. Product Ordering and Delivery Protocol: PPO agrees to follow the
protocol listed on Exhibit 1 in respect of the ordering and delivery
of the Product.
2. Product Manufacture: VL will be solely responsible for manufacturing
the Product in accordance with the specified Product formulations.
VL, or VL's subcontractor, will manufacture all "Products" in
accordance with industry standards for similar products. VL will
ensure that the Product meets all government standards or other
regulations for such products, if any. VL xxxx
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maintain a reasonable inventory of the Product for marketing and
promotional purposes.
3. Payment Terms: Payment terms are set forth on Exhibit 2.
4. Term: The Agreement will continue for three years from the effective
date of this Agreement and will automatically renew for additional
one-year terms unless either party gives notice of its intent not to
renew the agreement not less than sixty (60) days prior to the end
of the then current term. Either party may terminate the Agreement
for cause or breach of material term or condition upon thirty (30)
days written notice. If the agreement is terminated after
distribution of the Product has begun, "VL" may have 180 days to
distribute any Product still in inventory if it bears the PPO logo
or endorsement.
5. Liability: VL will maintain product liability insurance in such
amounts agreed to by the parties. PPO will be named as an additional
insured under any policy related to manufacture and sale of the
Product. VL will further indemnify all PPO and PPO Affiliates
officers, directors, employees, and all subsidiaries of A.C.E.
Health, LLC, from any liability relating to third-party use of the
Product.
6. Confidentiality: In connection with this Agreement, the parties will
develop, acquire, or be granted access to trade secrets and other
information that is confidential and proprietary to the parties or
to third parties. Such information includes but is not limited to
patient lists and information, costs of manufacturing, product
formulations, technical data, methods, processes, expertise,
business and marketing strategies, operations, research and
development, business opportunities, and financial data. The parties
will not at any time during or after termination of this Agreement,
directly or indirectly, divulge, use or permit the use of any
confidential or proprietary information of the other, except as
required in the course of this Agreement. Upon termination of this
Agreement, the parties will immediately turn over to the other all
confidential information materials belong to such part, including
all copies thereof or notes relating thereto, in such party's
possession or otherwise subject to its control. Notwithstanding the
above, the following materials will not be deemed confidential:
(i) Information which was in the public domain at the time of
disclosure (provided, however, that collection or compilation of publicly
available information will be considered proprietary if the disclosing party's
collection or organization of the material would be difficult or time-consuming
to replicate);
(ii) Information which was published or otherwise became part
of the public domain after disclosure to the receiving party through no fault of
the receiving party (but only after, and only to the extent that, it Is
published or otherwise becomes a part of the public domain); and
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(iii) Information, which was, received from a third party who
did not acquire it, directly or indirectly, from the disclosing party under an
obligation of confidence except where required by law. The receiving party will
have the burden of establishing the existence of these conditions by objective
or verifiable evidence.
For the avoidance of doubt, VL will own all trademarks and other intellectual
property related to the Product, as well as all packaging and marketing except
for any PPO logo or trademark incorporated in the Product packaging.
7. Notice: Any notice or other communications required or that may be
given pursuant to this Agreement will be in writing and will be
delivered personally, facsimile, electronic mail with confirmation
by recognized overnight carrier to the address of the party as set
forth below, or to any other address requested by the respective
parties after giving written notice to the other party.
8. Governing Law: This Agreement will be governed by and construed in
accord with the laws of the State of Arizona. All disputes will be
resolved by binding arbitration under the Commercial Arbitration
Rules of the American Arbitration Association in Phoenix, Arizona,
except that either party may apply to a court of competent
jurisdiction solely for interlocutory injunctive relief to maintain
the status quo pending the results of the arbitration. The
prevailing party in any dispute will be entitled to recover its
reasonable attorneys' fees and related costs and expenses incurred
in connection therewith.
9. Severability: If any court of competent jurisdiction rules any
provision of this Agreement invalid, illegal, or unenforceable, the
validity, legality, and enforce ability of the remaining provisions
will not be affected or impaired in any way.
10. Non-Solicitation: VL agrees that it will not directly or indirectly
sell or otherwise solicit any members or participants in the PPO
other than through the terms and provisions of this Agreement.
11. Entire Agreement: This Agreement constitutes the entire, integrated
agreement among the parties regarding the subject matter hereof and
supersedes any and all prior and agreements, representations, and
understandings of the parties.
12. Assignment: Neither party will assign this Agreement or any of its
rights or obligations without the prior consent of the other party.
Provided, however, that either party may assign this Agreement and
its rights and obligations hereunder, with prior notice to the other
party to any person or entity that purchases all or substantially
all of its assets, or that merges with or into such assigning party,
or that is under common ownership or control of the assigning party,
and that agrees in writing to be bound by the terms hereof.
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VITAL LIVING, INC., ________________________________
A Nevada corporation a_______________________________
By: /S/ Xxxxxxx X. Xxxxx By: ______________________________
Printed Name: Xxxxxxx X. Xxxxx Printed Name: ____________________
Its: C.E.O. Its: _____________________________
Address: Address:
0000 X. 00xx Xxxxxx, Xxxxx 000 ___________________________________
Xxxxx, Xxxxxxx 00000-0000
___________________________________
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Exhibit 1
PPO will fax or electronically transmit a weekly list of all orders, with
addresses. VL will directly ship such orders to each patients address, by UPS or
other comparable service.
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Exhibit 2
PPO shall be responsible for paying the cost of the product at the then current
Wholesale Price, and related shipping charges. The Wholesale Price shall be
$24.00 per package, which price may change from time to time by VL upon 30 days
written notice to PPO. Notwithstanding the foregoing, the Wholesale Price will
not be changed by VL for the first 180 days from the inception of the first
order.
Payment shall be due from PPO on placement of orders to VL.
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