SUPPLY AND DISTRIBUTION AGREEMENT
THIS SUPPLY AND DISTRIBUTION AGREEMENT, ("Agreement") is entered into as
of this 8th day of January, 2003 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 Newport
Bioceuticals, LLC, a Nevada limited liability company ("Newport
Bioceuticals"), whose principal place of business is 0000 Xxxx Xxxxx Xxxxxxx,
Xxxxx 0X, Xxxxxxx Xxxxx XX 00000.
WHEREAS, Imagenetix has developed and manufactures a proprietary
dietary supplement and cream for arthritis (hereinafter the "Product" and or
"Celadrin ", as defined below); and
WHEREAS, Newport Bioceuticals is engaged in the business of
marketing and distributing dietary supplements and bioceutical products 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 arthritis
products developed by Imagenetix and currently marketed under the
brand name Celadrin.
1.2 "Licensed Territory" shall be worldwide.
1.3 "Direct Marketing" means that channel of distribution of products
and services that involves selling directly to consumers as well
through television shopping channels such as QVC, HSN, etc., including
and any new television shopping channels created during the term of
this agreement.
2. Supply and Sale. Imagenetix shall supply and sell to Newport
Bioceuticals 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 Newport Bioceuticals for the
purpose of having the rights to sell Imagenetix products in Direct
Marketing to the consumer market and on a mass market basis with
exception of Target Stores and Target affiliated stores.
2.2 Exclusive Distributor. During the term of this Agreement, Newport
Bioceuticals shall be the exclusive distributor of Products in the
Licensed Territory via Direct Marketing, provided that Newport
Bioceuticals continues to market Product.
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 or 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
Newport Bioceuticals 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 Newport Bioceuticals
within thirty (30) calendar days of Imagenetix's recognition of
any problem, anomaly, defect or condition (planned or unplanned)
that would reasonably cause Newport Bioceuticals 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.
6. Indemnity.
6.1 Against Product Liability. Imagenetix agrees to indemnify and
hold Newport Bioceuticals and its affiliates harmless against any
and all claims, 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 Newport Bioceuticals 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 Newport
Bioceuticals is obligated to make to its customers as a
consequence thereof. Newport Bioceuticals 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
Newport Bioceuticals 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 Newport Bioceuticals 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 Newport Bioceuticals are safe and efficacious when
taken in the recommended dosages.
9.2 Imagenetix warrants that all units of the Product sold and
delivered to Newport Bioceuticals shall, as of the date of
delivery to Newport Bioceuticals, not be misbranded within the
meaning of any laws or regulations.
9.3 Imagenetix warrants that all Products sold and delivered to
Newport Bioceuticals 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.
9.5 Imagenetix authorizes Newport Bioceuticals to utilize its clinical
and medical research as it relates to all products Newport
Bioceuticals purchases from Imagenetix. Imagenetix will provide
full cooperation in assisting Newport Bioceuticals in developing
consumer advertising by providing Newport Bioceuticals with
product names and suggested marketing and scientific support
statements.
10. Insurance. Imagenetix agrees to carry product and contractual
liability insurance for Newport Bioceuticals benefit, at Imagenetix's expense,
with liability limits of $1,000,000.00 aggregate and $1,000,000.00 per
incident, to name Newport Bioceuticals as an additional insured on all such
policies and to deliver to Newport Bioceuticals 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 Newport Bioceuticals 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. NEWPORT BIOCEUTICALS, LLC.
/s/Xxxxxxx X. Xxxxxxx /s/Xxxxxx Xxxxxxx
By: Xxxxxxx X. Xxxxxxx By: Xxxxxx Xxxxxxx, on behalf of
Its: President Newport Bioceuticals, LLC
