EXHIBIT 6.10
GENERAL CONTRACT FOR PRODUCTS
This Contract (this "Contract") is made effective as of November 26, 2002,
between Indian River Labs, Inc., of 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000
("Seller"), and Xxxxxx Capital Corp., of 00 Xxxxx Xx., Xxxxx 000, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000-0000 ("Buyer").
WHEREAS, Buyer and Pharlo Citrus Technologies, Inc. ("Pharlo") have entered into
that certain Exclusive License Agreement of even date herewith (the "License
Agreement");
WHEREAS, Seller has entered into an agreement with Pharlo pursuant to which
Seller will manufacture consumer deodorant breath products, animal breath
products and soft drink products for Buyer;
WHEREAS, In connection with the enjoyment of its rights under the License
Agreement, Buyer wishes to have manufactured and supplied, and Seller wishes to
manufacture and supply, consumer deodorant breath products, animal breath
products, and soft drink products.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Licensor and Licensee hereby agree as follows:
1. MANUFACTURE AND SALE OF GOODS.
A. Engagement. Seller agrees to manufacture and sell, and Buyer agrees to buy,
the following products (collectively, the "Goods") in accordance with the terms
and conditions of this Contract:
Description
a). Concentrates for consumer deodorant breath products presently known as
Rephresh ("Consumer Products Concentrates")
b). Concentrates for animal breath products ("Animal Products
Concentrates")
c). Concentrates for soft drink products ("Soft Drink Concentrates")
The Goods will be produced according to formulas established by Seller
and/or its predecessors in interest and agreed to by Seller and Buyer (the
"Formulas").
Price
a). Consumer Products Concentrates: $ 53.00 per gallon (5:1
concentrate).This price is predicated on the quantities projected by Buyer
in its business plan. Any significant reduction in these quantities may
result in higher prices, subject to Buyer's written approval which
approval shall not be unreasonably withheld. Seller and Buyer recognize
that some ingredients from outside suppliers are commodity items, and
therefore may be subject to fluctuations in price. In an effort to
maintain a stable price, Seller will retain or absorb any price
differentials within 20% of ingredient price levels established when the
above-referenced price was determined. Price fluctuations outside this
parameter may be reflected in adjusted selling price to the Buyer after
notice and a description of the reasons for the adjusted selling price,
subject to Buyer's approval of the adjusted selling price which approval
shall not be unreasonably withheld. b). Animal Products Concentrates: To
be negotiated c). Soft Drink Concentrates: To be negotiated
Packaging
a). Consumer Products Concentrates: 15 gallon drums, 55 gallon drums, 300
gallon totes. Packaging Cost is $ .60 per gallon of concentrate, not
included in above price of concentrate.
b). Animal Products Concentrates: To be discussed
c). Soft Drink Concentrates: To be discussed
Minimum Order
a). Consumer Products Concentrates: 100 gallons
b). Animal Products Concentrates: To be discussed
c). Soft Drink Concentrates: To be discussed
B. Exclusivity. Contingent upon the agreement of Buyer and Seller to the
pricing, packaging and minimum orders for Animal Products Concentrates and Soft
Drink Concentrates, during the term of this Contract, Buyer will not engage any
party other than Seller to manufacture the Goods, except as is expressly
permitted under this Contract.
C. Seller will use its best efforts during the term of this Contract to provide
Buyer with such assistance as Buyer may reasonably require with regard to the
development, production, sale and servicing of the Goods.
D. Without Buyer's prior written approval, Seller shall not engage in any sales
or marketing activities regarding the Goods, and shall forward any inquiries it
receives regarding the Goods to Buyer.
2. PRODUCT STANDARDS AND COMPLIANCE WITH LAWS.
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A. The Goods shall comply with industry standards.
B. Seller shall comply with all applicable laws, ordinances, rules, regulations,
orders, licenses, permits and other requirements, now or hereafter in effect, of
any applicable government authority with respect to the production, manufacture
and delivery of the Goods. Seller shall also otherwise cooperate with Buyer in
connection with Buyer's compliance with any law, ordinance, rule, regulation,
order, license, permit or other requirement respecting the production,
manufacture, distribution or sale of any Good.
3. TITLE/RISK OF LOSS. The Goods shall be delivered F.O.B. plant, Sebastian,
Florida.
4. INVOICE AND PAYMENT. Payment shall be made to Indian River Labs, Inc., 0000
Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000, within 30 days from date of invoice.
Each invoice must reference the applicable Buyer P.O., the Goods shipped,
quantities, unit prices and extended totals. Payment of an invoice will not
constitute acceptance of the Goods covered by the invoice and will be subject to
adjustment for errors, shortages or other defects.
If any invoice is not paid when due, interest will be added to and payable on
all overdue amounts at 7.00 percent per annum, or the maximum percentage allowed
under applicable laws, whichever is less. Buyer shall pay all costs of
collection, including without limitation, reasonable attorney fees.
In addition to any other right or remedy provided by law, if the Buyer fails to
pay for the Goods when due, the Seller at its option may treat such failure to
pay as a material breach of this Contract, and may terminate this Contract
and/or seek legal remedies.
5. DELIVERY. Time is of the essence in the performance of this Contract. Without
limiting the foregoing, Seller shall deliver all Goods within five to ten days
of its receipt of Buyer's P.O. unless otherwise agreed in writing by Buyer.
Seller will arrange for delivery by carrier chosen by Seller reasonably
acceptable to Buyer to the location specified by Buyer in its P.O.
6. PAYMENT OF TAXES. Buyer agrees to pay all taxes of every description,
federal, state, and municipal, that arise as a result of this sale, excluding
income taxes.
7. GOODS WARRANTIES. Seller warrants, represents and covenants that the Goods
shall conform to the Formulas, shall be free of substantive defects in material
and shall be manufactured and provided by Seller in accordance with all
applicable statutes, laws, rules and regulations, including those relating to
the environment and occupational health and safety. This warranty will survive
any
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inspection of, acceptance of or payment for any Goods and the expiration or
termination of this Contract, and will be in addition to any other rights and
warranties available to Buyer. This Warranty shall be void if Seller's storage
instructions as set forth on the product label are not followed.
8. INSPECTION. The Buyer, upon receiving possession of the Goods, shall have
five (5) business days to inspect the Goods to determine if the Goods conform to
the requirements of this Contract. If the Buyer, in good faith, determines that
all or a portion of the Goods are non-conforming, the Buyer may return the Goods
to the Seller at the Seller's expense. The Buyer must provide written notice to
the Seller of the reason for rejecting the Goods. The Seller will have 30 days
from the return of the Goods to remedy such defects under the terms of this
Contract. If Seller fails to remedy the defects within such period, Buyer may at
its sole discretion reject the Goods and rescind the applicable P.O. in whole or
in part, as the case may be or accept the nonconforming Goods with a mutually
agreed upon adjustment in price. Payment for nonconforming Goods will not
constitute acceptance thereof, limit or impair Buyer's or its Customer's right
to assert any legal or equitable remedy, or relieve Seller's responsibility for
latent manufacturing defects.
9. REPRESENTATIONS AND WARRANTIES.
A. Seller Representations, Warranties and Covenants. Seller hereby represents,
warrants and covenants to Buyer as follows:
(i) Seller is duly organized and validly existing under the laws of
the jurisdiction of its organization with full power to conduct its affairs as
currently conducted and contemplated hereunder. All necessary company action has
been taken to enable it to execute and deliver this Contract and perform its
obligations hereunder.
(ii) This Contract is Seller's valid and binding obligation and is
enforceable against Seller in accordance with its terms. Seller has the
unencumbered right to enter into this Contract and to fulfill its obligations
hereunder.
B. Buyer Representations, Warranties and Covenants. Buyer hereby represents,
warrants and covenants to Seller as follows:
(i) Buyer is a duly organized and validly existing under the laws of
the jurisdiction of its organization with full power to conduct its affairs as
currently conducted and contemplated hereunder. All necessary corporate action
has been taken to enable it to execute and deliver this Contract and perform its
obligations hereunder.
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(ii) This Contract is Buyer's valid and binding obligation and is
enforceable against Buyer in accordance its terms. Buyer has the unencumbered
right to enter into this Contract and to fulfill its obligations hereunder.
10. INDEMNIFICATION.
A. By Seller. Seller shall indemnify, defend and hold harmless Buyer, its
officers, directors, shareholders, employees and agents from and against any and
all claims, actions, or demands (including without limitation reasonable fees
and expenses of legal counsel incurred in settling or defending any such claim,
action or demand) arising out of, or in connection with:
(i) the failure of any Good manufactured by Seller to: (a) be free
from defects in manufacturing and workmanship; and/or (b) comply with the
Formulas (as such Formulas may be amended and in effect at the time of delivery
of such Good); including, but not limited to, any actual or alleged injury,
damage, death or other consequence occurring to any person as a result, directly
or indirectly, of the possession or use of any such Good, whether claimed by
reason of breach of warranty, negligence, product defect or otherwise, and
regardless of the form in which any such claim is made;
(ii) any breach of any provision of this Contract by Seller or
failure of any representation or warranty of Seller contained in this Contract
to be true; or
(iii) any claims, actions, or demands alleging that any technology,
know-how, technical information, patents, patent applications, inventions, and
trade secrets (including but not limited to, all formulas, models, methods,
designs and materials relating thereto) used by Seller in manufacturing the
Goods or licensed or otherwise provided to Buyer or a third party hereunder
infringe upon or misappropriate the intellectual property or other proprietary
rights of any third party.
B. By Buyer. Buyer shall indemnify and hold harmless Seller, its officers,
directors, shareholders, employees and agents from and against any and all
claims, actions, or demands (including without limitation reasonable fees and
expenses of legal counsel incurred in settling or defending any such claim,
action or demand) arising out of, or in connection with the failure of any
representation or warranty of Buyer contained in this Contract to be true.
C. The foregoing indemnities are conditioned on prompt written notice of any
claim, action, or demand for which indemnity is claimed; complete control of the
defense and settlement thereof by the indemnifying party (provided that it may
not agree to any settlement that imposes a material burden or liability upon the
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indemnified party without such party's consent, not to be unreasonably
withheld); and cooperation of the other party in such defense.
D. Prior to the first commercial sale of any Good, Seller shall procure and
thereafter shall maintain liability insurance, including product liability
insurance, in the amount of at least one million dollars ($1,000,000) per
occurrence and five million dollars ($5,000,000) aggregate per year naming Buyer
as an additional insured and providing that such insurance policy cannot be
canceled without thirty (30) days written notice to Buyer. Evidence of such
insurance shall be furnished to Buyer prior to the first commercial sale of a
Good.
11. TERM AND TERMINATION.
A. This Contract will become effective upon the first set forth above and will
remain in effect for the term of the License Agreement unless earlier terminated
in accordance with the terms and conditions of this Contract.
B. This Contract will be terminable as follows:
(i) by the mutual written agreement of the parties;
(ii) immediately by either party should the other party (a) admit in
writing its inability to pay its debts generally as they become due; (b)
make a general assignment for the benefit of creditors; (c) institute or
consent to bankruptcy proceedings against it; (d) be adjudicated as being
bankrupt or insolvent; (e) seek or consent to reorganization under any
bankruptcy act; or (f) have a decree entered against it by a court of
competent jurisdiction appointing a receiver, liquidator, trustee, or
assignee in bankruptcy or in insolvency covering all or substantially all
of such party's property or providing for the liquidation of such party's
property or business affairs;
(iii) should Seller for any reason discontinue the manufacture of any Good
or is unable to deliver in full any Good by the due date for delivery of
such Good, and fails to remedy satisfactorily the deficiency within ten
(10) days following receipt of written notice by Buyer, Buyer may
terminate this Contract; and
(iv) should either party commit a material breach of any of its
obligations hereunder other than those of Seller set forth in part (iii)
above, the other party may terminate this Contract thirty (30) days after
receipt by the defaulting party of written notice describing the basis for
such termination, unless prior to expiration of such period the defaulting
party cures such default.
C. Sections 1(D), 2, 7, 9, 10, 11(C) and 13 through 24 shall survive any
expiration or termination of this Contract.
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12. FORCE MAJEURE. If performance of this Contract or any obligation under this
Contract is prevented, restricted, or interfered with by causes beyond either
party's reasonable control ("Force Majeure"), and if the party unable to carry
out its obligations gives the other party prompt written notice of such event,
then the obligations of the party invoking this provision shall be suspended to
the extent necessary by such event. The term Force Majeure shall include,
without limitation, acts of God, fire, explosion, vandalism, storm or other
similar occurrence, orders or acts of military or civil authority, or by
national emergencies, insurrections, riots, or wars, or supplier failures.
The excused party shall use reasonable efforts under the circumstances to avoid
or remove such causes of non-performance and shall proceed to perform with
reasonable dispatch whenever such causes are removed or ceased. If a party's
performance is so excused for more than ninety (90) days, then the other party
may terminate this Contract. An act or omission shall be deemed within the
reasonable control of a party if committed, omitted, or caused by such party, or
its employees, officers, agents, or affiliates.
13. ESCROW. Promptly after this Contract is executed, Buyer and Seller shall
enter into an agreement with a third party escrow agent and Seller shall deliver
to such escrow agent all technology, know-how, specifications, technical
information, patents, patent applications, inventions, improvements, and trade
secrets (including but not limited to detailed instructions on manufacture and
verification processes), whether or not patentable, that Seller possesses that
are necessary or useful to manufacture the Goods (collectively, the "Escrow
Materials"), and shall supplement the Escrow Materials from time to time to
reflect improvements to the Escrow Materials and new relevant information and
materials. Immediately upon any termination of this Contract, Seller agrees to
grant, and hereby grants, to Buyer a non-exclusive, irrevocable, worldwide right
and license to use such Escrow Materials to manufacture, improve, distribute,
sell and otherwise use the Goods and Seller agrees to provide such reasonable
technical assistance as may be required by Buyer; provided that any third party
that may access the Escrow Materials shall be bound by obligations of
nondisclosure at least as stringent as those by which Buyer is obligated
hereunder regarding any Confidential Information of Seller. The provisions of
this section and any licenses granted hereunder shall survive the termination of
this Contract.
14. ARBITRATION. Any controversies or disputes arising out of or relating to
this Contract shall be resolved by binding arbitration in accordance with the
then-current Commercial Arbitration Rules of the American Arbitration
Association. The parties shall select a mutually acceptable arbitrator
knowledgeable about issues relating to the subject matter of this Contract. In
the event the parties are unable to agree to such a selection, each party will
select an arbitrator and the two arbitrators in turn shall select a third
arbitrator, all three of whom shall
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preside jointly over the matter. The arbitration shall take place in the State
of Florida.
All documents, materials, and information in the possession of each party that
are in any way relevant to the dispute shall be made available to the other
party for review and copying no later than 30 days after the notice of
arbitration is served.
The arbitrator(s) shall not have the authority to modify any provision of this
Contract or to award punitive damages. The arbitrator(s) shall have the power to
issue mandatory orders and restraint orders in connection with the arbitration.
The decision rendered by the arbitrator(s) shall be final and binding on the
parties, and judgment may be entered in conformity with the decision in any
court having jurisdiction. The agreement to arbitration shall be specifically
enforceable under the prevailing arbitration law. During the continuance of any
arbitration proceeding, the parties shall continue to perform their respective
obligations under this Contract.
15. CONFIDENTIALITY. From time to time during the term of this Contract, the
parties hereto may disclose or make available to each other Confidential
Information in connection with the activities contemplated hereunder. Each party
hereby agrees that, during the term of this Contract and thereafter, it will not
(a) use Confidential Information belonging to the other except for the
purpose(s) for which it was disclosed hereunder, or (b) disclose Confidential
Information belonging to the other party to any third party (other than its
employees, consultants and/or other third parties reasonably requiring such
Confidential Information who are bound by written obligations of nondisclosure
and non-use consistent with those set forth herein) without the express written
consent of the disclosing party; provided however that the foregoing shall not
restrict any disclosure by either party required by applicable law if the other
party is given a reasonable opportunity to review such disclosure and, if
applicable, seek a protective order or other method of limiting the scope of
such disclosure. "Confidential Information" means, with respect to either party,
any and all information that such party discloses to the other, including,
without limitation, information related to its products, services, technology,
methodologies, specifications, manufacturing, know-how, business or marketing
plans. Notwithstanding the preceding sentence, "Confidential Information" shall
not include information that is (i) known to the public through no act or
omission of the receiving party in violation of this Contract, (ii) furnished to
the receiving party by a third party having the lawful right to do so, (iii)
known to the receiving party prior to its disclosure hereunder (as evidenced by
written documentation thereof); or (iv) developed independently by the receiving
party (as evidenced by written documentation thereof).
16. NOTICES. Any notice or communication required or permitted under this
Contract shall be sufficiently given if delivered in person or by certified
mail,
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return receipt requested, to the addresses listed above or to such other address
as one party may have furnished to the other in writing. The notice shall be
deemed received when delivered or signed for, or on the third day after mailing
if not signed for.
17. INDEPENDENT CONTRACTOR STATUS. Nothing herein shall be construed to create a
partnership, joint venture, or agency relationship between the parties hereto.
18. EQUITABLE REMEDIES. Notwithstanding anything to the contrary herein, Seller
agrees that any breach by it of its obligations contained in Sections 1(D), 13
or 15 may result in irreparable harm to Buyer for which money damages may not be
a sufficient remedy and thus Buyer shall be entitled to equitable relief,
including without limitation injunctive relief, without bond or surety, in the
event of a breach of any of such Sections by Seller. Buyer agrees that any
breach by it of its obligations contained in Section 15 may result in
irreparable harm to Seller for which money damages may not be a sufficient
remedy and thus Seller shall be entitled to equitable relief, including without
limitation injunctive relief, without bond or surety, in the event of a breach
of such Section by Buyer.
19. ASSIGNMENT. This Contract shall be binding upon, and inure to the benefit
of, the parties and their respective legal representatives, successors and
permitted assigns. Neither party may assign or transfer this Contract without
prior written consent of the other party, which consent shall not be
unreasonably withheld; provided however that Buyer may assign all of its rights
hereunder to the purchaser (the "Assignee") or surviving entity in any stock,
assets, merger or other transaction in which all or substantially all of the
business of such party is transferred, regardless of the form such transaction
may take; provided that the Assignee assumes all of the obligations of Buyer
hereunder and Buyer remains jointly and severally liable for such obligations.
20. ENTIRE CONTRACT. This Contract contains the entire agreement of the parties
regarding the subject matter of this Contract, and there are no other promises
or conditions in any other agreement whether oral or written.
21. AMENDMENT. This Contract may be modified or amended only if the amendment is
made in writing and signed by both parties.
22. SEVERABILITY. If any provision of this Contract shall be held to be invalid
or unenforceable for any reason, the remaining provisions shall continue to be
valid and enforceable. If a court finds that any provision of this Contract is
invalid or unenforceable, but that by limiting such provision it would become
valid and enforceable, then such provision shall be deemed to be written,
construed, and enforced as so limited.
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23. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any
provision of this Contract shall not be construed as a waiver or limitation of
that party's right to subsequently enforce and compel strict compliance with
every provision of this Contract.
24. APPLICABLE LAW. This Contract shall be governed by the laws of the State of
Florida.
IN WITNESS WHEREOF, the parties have caused this Contract to be executed by
their duly authorized representatives as of the date first set forth above.
SELLER: INDIAN RIVER LABS, INC.
By: ____________________________
Xxxxx Xxxxxxx
President
BUYER: XXXXXX CAPITAL CORP.
By: ____________________________
Xxxxxx Xxxxxxxx
President
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