"SUPER CITRIMAX(R) CLINICAL STRENGTH"
LICENSING AGREEMENT
This Licensing Agreement ("Agreement") is entered into as of June 7, 2004
("Effective Date"), between InterHealth Nutraceuticals Incorporated, a
California corporation ("Company"), and the licensee identified on the signature
page of this Agreement ("Licensee").
WHEREAS, Company markets, distributes and sells a standardized calcium/potassium
(-)hydroxycitric acid product described in Exhibit A attached hereto
("Product"), which:
(a) is sold as nutritional supplement,
(b) is the subject of various U.S. and PCT patents pending described in
Exhibit A attached hereto, as well as other patents pending, which may
be applied for in the future ("Patents Pending"),
(c) is the subject of various research studies described in Exhibit B
attached hereto, as well as other research studies, which may be
conducted and published in the future ("Research"),
(d) is the subject of various product claims covered by the Patents
Pending and supported by the Research ("Product Claims"), and
(e) is sold under the tradename "Super CitriMax Clinical Strength"
("Trademark")
("Licensed Product").
WHEREAS, A) Company is the owner of all right, title and interest in the (i)
Patents Pending, including any continuation-in-parts, divisional and reissue
applications, and any patents resulting therefrom ("Patent Rights"), and (ii)
Trademark, including variations thereof and any registrations which may exist
therefore, for its Licensed Product, B) Licensee desires to sell, market and
distribute finished product(s) that contain Licensed Product to be packaged by
Licensee in end-user, finished packaged form as a nutritional supplement (each a
"Finished Product," collectively "Finished Products"), and to use the Trademark,
Product Claims and Research in connection with sales of its Finished Products;
and C) Company is willing to (i) sell Product to Licensee, or Licensee's
designated contract manufacturer(s), and (ii) grant Licensee the right to use
the Trademark, Product Claims and Research in connection with the sale of
Licensee's Finished Products.
NOW, THEREFORE, the parties agree as follows:
1. TRADEMARK OWNERSHIP - Licensee agrees that:
(a) Company is the sole and exclusive owner of all right, title and
interest in, and to, the Trademark and Patent rights;
(b) Licensee shall not challenge or question the validity of, or
Company's title to, the Trademark or Patent Rights; and
(c) with the exception of the rights being licensed under this
Agreement, all other rights relating to the Trademark and Patent
Rights are the property of the Company and Licensee shall not
acquire any other rights to the Trademark or Patent Rights.
2. BUY/SELL AGREEMENT - Company agrees to sell Product to Licensee or
Licensee's designated contract manufacturer(s) of Finished Products
(each a "Contract Manufacturer," collectively "Contract
Manufacturers"), and Licensee or Licensee's Contract Manufacturers,
whichever the case may be, agree to purchase Product exclusively from
Company at prices, terms and conditions acceptable to Company and
Licensee and/or Licensee's Contract Manufacturers, whichever the case
may be, and other terms and conditions specified in this Agreement.
3. GRANT OF LICENSE - Company grants to Licensee, and Licensee accepts, a
non-exclusive, non-transferable, royalty-free license to use the
Trademark, Product Claims and Research solely in connection with the
marketing and distribution of Finished Products that contain Product
in the manner, and on the terms and conditions, specified in this
Agreement. InterHealth represents that to the best of its knowledge,
information, and belief (a) the Research has been conducted in
accordance with good scientific standards and practices, and (b) the
Product Claims are substantiated by the Research.
4. USE OF TRADEMARK - Licensee shall:
(a) use the Trademark, Product Claims and Research solely in
connection with:
(i) the Licensed Product purchased from Company, and
(ii) Finished Product that is in compliance with this Agreement;
(b) display the Trademark on, or in, all labeling, advertising and
promotional
materials of its Finished Products in a manner that clearly
associates the Trademark with the licensed Product;
(c) display or reproduce the Trademark only in:
(i) the appropriate logo style specified in Exhibit C attached
to this Agreement (electronic file of the Trademark logo to
be provided to Licensee by Company upon execution of this
Agreement); or
(ii) type-written form only if used in secondary labeling,
advertising and promotional copy (i.e. in a sentence or
paragraph describing the Licensed Product), and so long as
the Super CitriMax trademark is accompanied by the "(R)"
symbol and identified as a trademark of InterHealth N.I.;
and
(d) not use, display or relate in any manner, either directly or
indirectly, the Trademark, Product Claims or Research in
connection with any products that do not contain Licensed Product
and are not subject to this Agreement.
5. PRODUCT INFORMATION AND MATERIALS - Company provides, and will
provide, Licensee information and materials relating to Licensed
Product, whether proprietary or non-proprietary, whether written,
recorded or verbal, whether on, prior or subsequent to the date of
this Agreement, whether prepared by Company or by a third party,
including, but not limited to, all Licensed Product sales and
marketing materials, research data and other technical information in
good faith and which InterHealth believes to be true and accurate
("Information" and "Materials"), "As Is, With All Faults," and makes,
and will make, no representations or warranties, express or implied,
as to the usefulness, accuracy, completeness, feasibility, reliability
or legality of the Information and Materials. Licensee may use all
Information and Materials prepared by or for Company solely in
connection with the marketing and distribution of Licensed Product
purchased from the Company or Finished Products that contain Licensed
Product purchased from the Company and not in connection with any
products that do not contain Licensed Product and are not subject to
this Agreement; provided that Licensee does not in any way alter any
of the Materials. Company may amend, add to, subtract from or
otherwise change from time to time, the Information and/or Materials,
in its sole and absolute discretion.
6. UNDERTAKINGS BY LICENSEE:
(A) PRODUCT CHANGES - Licensee may amend, add to, subtract from or
otherwise change from time to time its Finished Products,
provided that all such changes and Finished Products comply with
the terms and conditions of this Agreement;
(B) PRODUCT DOSAGE - Licensee shall formulate, manufacture and label
all Finished Product in accordance with the required dosage
described in Exhibits A ("Required Dosage");
(C) LABELING STATEMENTS - Licensee shall display the required
labeling statements described in Exhibits A ("Required Labeling
Statements"), on or in all labeling, advertising and promotional
materials of its Finished Products in a manner that clearly
associates the Required Labeling Statements with the Licensed
Product;
(D) PATENTS - If and when they are issued, Licensee shall list the
number(s) of all patents issued for Licensed Product ("Patents"),
which are appropriate to the territory(ies) in which the Finished
Product is sold, on or in all labeling, advertising and
promotional materials of said Finished Products in a manner that
clearly associates the Patents with the Licensed Product
("Required Patent Information"). As new Patents are issued, or
the Required Patent Information changes, Company shall notify
Licensee in writing and Licensee shall be provided a reasonable
amount of time to update its labeling, advertising and
promotional materials of its Finished Products to reflect the new
Required Patent Information;
(E) LABEL REVIEW - Prior to distribution of its Finished Products,
Licensee shall provide Company copies of its Finished Product
labeling, advertising and promotional materials for pre-market
approval by Company, which Company shall promptly review solely
with respect to their compliance with this Agreement. Company
shall promptly notify Licensee in writing of its acceptance or
rejection of Licensee's Finished Product labeling, advertising
and promotional materials with respect to their compliance with
this Agreement. If rejected, Company shall inform Licensee of the
changes necessary to be in compliance with this Agreement;
(F) PRODUCT QUALITY - Licensee shall (i) not blend nor formulate the
Licensed Product with any other (-)hydroxycitric acid or Garcinia
material, and (ii) not sell any Finished Products that are not
manufactured in accordance with the requirements of the United
States Federal Food, Drug and Cosmetic Act, including all
applicable good manufacturing practice regulations, or, in the
event Finished Products are manufactured or distributed in
countries outside the United States, in accordance with all
applicable laws and regulations of such countries;
(G) PRODUCT SUPPLY - Licensee agrees that it will not resell or
supply any Licensed Product in bulk raw material form, either
directly or indirectly, to any other third party, except for use
in the manufacture of Licensee's Finished Products;
(H) SALES RECORDS - If requested by Company, Licensee shall provide
Company a record of its Finished Product sales within fifteen
(15) days of Company's written request. Company shall, at its
sole option, have the right, at its own expense, to have an
independent accounting firm acceptable to Licensee, whose
acceptance shall not unreasonably be withheld, audit Licensee's
Finished Product sales records during regular business hours, no
more than once each calendar year and with at least five (5)
business days prior written notice.
(I) THIRD PARTY COMPLIANCE - Licensee shall assure compliance with
this Agreement by any third-party manufacturer or distributor of
Finished Products, and guarantees performance of and payment
under Company's General Purchase Agreement by any manufacturer
which has purchased Licensed Product from Company for the
manufacture of Finished Products under contract with Licensee;
(J) NEW MARKS - Licensee may use its own trademarks, tradenames,
logos, advertising slogans and other related marks to identify
Licensee and its Finished Products (collectively, "Other Marks")
in Licensee's Materials, but agrees not to combine the Trademark
with any Other Marks, words, letters or symbols, or otherwise
alter the Trademark, to form one or more new marks ("New Marks"),
without the express written consent of Company, which consent
Company may withhold at its sole and absolute discretion.
Licensee agrees that Company is the sole and exclusive owner of
all right, title and interest in, and to, any New Marks, except
those rights expressly granted to Licensee;
(K) TRADEMARK INFRINGEMENT - Licensee shall bring to the attention of
Company any infringement or misuse of the Trademark which comes
to Licensee's attention. Company shall indemnify, defend and hold
Licensee harmless from any infringement or unfair competition
proceedings involving the Trademark so long as Licensee is using
the Trademark in compliance with this Agreement. Licensee shall
not assert any claim based upon misuse or infringement of the
Trademark without the prior written consent of Company;
(L) COMPLIANCE WITH LAWS - Licensee will comply with all laws and
regulations relating or pertaining to the use of the Trademark
and marketing of Finished Products;
(M) EXPENSES - Licensee will not create any expenses chargeable to
Company; and
(N) INDEMNIFICATION - Except as provided in Section 5(k), Licensee
indemnifies and holds Company harmless from any claims arising
out of any act under or in violation of this Agreement by
Licensee and its manufacturers and/or distributors, including,
but not limited to, the distribution, advertising and promotion
of Licensee's Finished Products, or use of the Information or
Materials.
(O) FORMULATION EXCLUSION - Licensee shall not produce, market or
sell any Finished Product(s) that contain a combination of
(-)hydroxycitric acid (Garcinia), chromium and gymnemic acid
(Gymnema) material, without the express written consent of
Company.
7. TERM AND TERMINATION - This Agreement shall commence on the Effective
Date and shall continue in full force and effect, unless and until
terminated as follows:
(a) Company shall have the right to terminate this Agreement upon
written notice to Licensee upon the breach of any provision of
this Agreement,
(b) Licensee shall have the right to terminate this Agreement at any
time upon written notice to Company, or
(c) Licensee's failure to purchase Licensed Product from Company
during any consecutive twelve month period of time shall
constitute on abandonment and automatic termination of this
Agreement.
Upon termination of this Agreement for any reason, Licensee shall
immediately discontinue all use of the Trademark, Product Claims,
Research, Materials and Information, except for publicly available,
non-proprietary Information. Sections 6(k,m,n,o), 7 and 8 shall
survive the termination of this Agreement.
8. GENERAL PROVISIONS:
(A) ASSIGNMENT - This Agreement is personal to Licensee. Licensee
shall not assign or transfer any rights or obligations under this
Agreement without the prior written consent of Company; provided,
however, that Licensee may assign to any manufacturer with which
Licensee contracts to produce any Finished Products any rights or
obligations reasonably necessary to enable the manufacturer to
produce the Finished Products. Any purported assignment without
consent except as provided in this Section 8(a) will be null and
void. This Agreement shall inure to the benefit of and be binding
upon the parties and their successors and assigns;
(B) RELATIONSHIP - The relationship of the parties to this Agreement
is determined solely by the provisions of this Agreement. The
parties do not intend to create any agency, partnership, joint
venture, trust or other relationship with duties or incidents
different from those of parties to an arm's-length contract
(C) CHOICE OF LAW - This Agreement shall be construed in accordance
with, and governed by, the internal laws of the State of
California, without regard to conflicts of law;
(D) INTEGRATION - This Agreement sets forth the entire understanding
of the parties relating to the transactions it contemplates, and
supersedes all prior understandings relating to them, whether
written or oral. There are no obligations, commitments,
representations or warranties relating to them except those
expressly set forth in these Agreements;
(E) ATTORNEY'S FEES - if any action is necessary to enforce the terms
of this Agreement the prevailing party shall be entitled to
reasonable attorneys' fees in addition to any other relief to
which it may be entitled;
(F) SEVERABILITY - Should all or any portion of any provision of this
Agreement be held unenforceable or invalid for any reason, the
remaining portions or provisions shall be unaffected; and
(G) WEIVER/MODIFICATION/ AMENDMENT - No amendment of, supplement to
or waiver of any obligations under this Agreement will be
enforceable or admissible unless set forth in a writing signed by
the party against which enforcement or admission is sought. No
delay or failure to require performance of any provision of this
Agreement shall constitute a waiver of that provision as to that
or any other instance. Any waiver granted shall apply solely to
the specific instance expressly stated.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
first written above.
LICENSEE
Company: Creative Enterprises Intl., Inc.
A Nevada Corporation
Address: 000 Xxxxxxxxx Xxxx
Xxxx, Xxxxx, Xxx: Xxxx Xxxx, Xx. 00000
Signature: /s/ Xxxxxxx Xxxxxxx
--------------------------
Name (Print): Xxxxxxx Xxxxxxx
Title: President
COMPANY (INTERHEALTH)
SIGNATURE: /s/ Illegible
--------------------------
Name (Print): _______________________
Title: EXEC. VP
SUPER CITRIMAX(R) CLINICAL STRENGTH
MARKETING AGREEMENT
This agreement ("Agreement") is entered into this 9th day of June, 2004 by
InterHealth Nutraceuticals Incorporated, a California Corporation with its
principal place of business at 0000 Xxxxxxxxxx Xxx, Xxxxxxx, XX 00000
("InterHealth") and Creative Enterprises Intl., Inc., a Nevada corporation with
its principal place of business at 000 Xxxxxxxxx Xxxx, Xxxx Xxxx, XX 00000
("Customer").
Whereas, InterHealth markets, distributes and sells a nutritional weight loss
ingredient under the tradename "Super CitriMax(R) Clinical Strength"
("Trademark"), which (a) is sold as a nutritional supplement, (b) is the subject
of certain patents pending ("Patents Pending"), and (c) meets the specifications
described in Exhibit A attached hereto, which may be updated in writing by
InterHealth from time to time (collectively referred to as "Product");
Whereas, Customer wishes to sell, market and distribute Product to be packaged
by Customer in end-user, finished packaged form as a nutritional supplement in
bottled water form only ("Finished Product") through Mass Market ("Channel")
located in the Untied States of America and it territories, Croatia, Australia,
Malaysia, Austria, Mexico, Belgium, New Zealand, Canada, Poland, Czech Republic,
Russia, Finland, South Africa, France, Sweden, Germany, Taiwan, Hong Kong,
Thailand, Japan, Xxx Xxxxxxxxxxx, Xxxxx, Xxxxxx Xxxxxxx ("Xxxxxxxxx"); and
Whereas, InterHealth appoints Customer to sell Finished Product on a
non-exclusive basis in the Channel and in the Territory.
Customer agrees to:
1. Use commercially reasonable efforts to sell, distribute, advertise and
promote Finished Product in the Channel and in the Territory solely
under its Skinny Water brand.
2. Execute and comply with the terms of the Super CitriMax(R) Clinical
Strength Licensing Agreement, including but not limited to, (a)
Finished Product dosage and recommended use requirements, and (b)
Finished Product labeling requirements, including (i) displaying the
Trademark logo and identifying the Trademark as "a trademark of
InterHealth N.I.," (ii) using the term "patent pending" in describing
the Product, and (iii) listing all Patent numbers, as they are issued,
on all packaging, advertising and promotional materials of Finished
Product.
InterHealth agrees to:
1. Use commercially reasonable efforts to promptly fill Customer's orders
for Product and to supply Product to Customer according to
specifications.
2. Use commercially reasonable efforts to provide (a) technical support
to Customer regarding Product, including information about the
Product's safety and efficacy, physical and chemical properties, and
applications and uses, and (b) ongoing marketing, research and
intellectual property support for Product, to the extent InterHealth
deems prudent.
3. Sell Product to Customer at the price of [****] F.O.B. Xxxxxxx,
XX 00000. Said price shall apply to sales of Product to Customer,
which are intended for use in the manufacture of Finished Product
under the Skinny Water brand to be sold in the Channel and in the
Territory only, and is subject to change upon 30 days written notice.
[*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.]
______________________________________________________________________
___________ ___________
/s/ Illegible 6/4/04 /s/ Illegible 6/22/04
------------------ Date ----------------- Date
__________________ _________________
