EXHIBIT 10.2
DISTRIBUTOR AGREEMENT
EXHIBIT 10.2
EXCLUSIVE DISTRIBUTOR AGREEMENT
THIS EXCLUSIVE DISTRIBUTOR AGREEMENT (the "Agreement") shall be
effective as of _Dec. 8, 2005 (hereinafter "Effective Date"), by and between
LifeUSA/ Envision Health, Inc., a corporation (hereinafter collectively
"ENVISION"), and Sierra Mountain Minerals, Inc., a Canadian company (hereinafter
"SIERRA"), is made with reference to the following facts:
Recitals
A. SIERRA is the manufacture and producer of a joint health product called
"SierraSil" (hereinafter "the Product") for human use.
B. ENVISION is the manufacturer of certain nutritional supplements and is
desirous of becoming an exclusive distributor for the Product in any
blend with Krill Oil (hereinafter "the Finished Product") in all
distribution channels in the Territory on the terms and conditions set
forth herein.
C. SIERRA is desirous of having ENVISION act as its exclusive distributor
for the Product in any blend with Krill Oil in all distribution
channels in the Territory on the terms and conditions set forth herein.
NOW, THEREFORE, it is hereby agreed as follows:
1. Incorporation of Recitals. The Recitals set forth in Paragraphs A
through C, above, are incorporated herein as though set forth in full.
2. Appointment. SIERRA hereby appoints ENVISION as its exclusive
distributor for the Product in any blend with Krill Oil within the
Territory subject to ENVISION fulfilling the terms and conditions of
the best efforts marketing requirements set forth herein in Sections 4,
5, and 9. SIERRA shall cease making sales to any customer or
distributor who, during the term of this Agreement, violates ENVISION's
exclusivity.
3. Territory. The Territory shall be the entire world.
4. Prices and Terms. The price for the Product as set forth in Section 9
herein, sold by SIERRA to ENVISION, shall be subject to change due to
changes in manufacturing costs and so as to maximize profits; any
changes in price for the Product shall not be applicable to previously
accepted orders and shall be made with at least ninety (90) days
advance notice in writing and in good faith by conference of the
parties. ENVISION shall not resell the Product alone. Terms of payment
will be 1/3 upon placement of order and 2/3 balance net thirty (30)
days or as mutually agreed upon in writing between the parties.
Delivery will be F.O.B. ENVISION shall be responsible for all costs of
shipping from SIERRA to ENVISION.
5. Product Support. ENVISION will use its best efforts to market and sell
the Finished Product throughout the Territory. The parties also agree
that:
o If SIERRA customers are interested in purchasing the Product in
any blend with Krill Oil, SIERRA will refer them to ENVISION.
o ENVISION will be responsible for all costs associated with
developing and manufacturing the Finished Product.
6. Sales Disclosures. ENVISION will provide SIERRA with demand projections
for the Product and SIERRA will produce enough Product to meet such
demand projections. ENVISION will inform SIERRA of committed sales and
SIERRA will increase or scale up its production of the Product
accordingly. SIERRA will not unreasonably withhold the Product, but
shall not be liable for unfulfilled or partially fulfilled orders given
just cause for such action.
7. Term. The term of this Agreement shall be two (2) years from the
Effective Date with automatic annual renewals thereafter provided
either party does not provide sixty (60) days notice of termination
prior to the renewal date or the Agreement is not otherwise terminated
as set forth in Section 8.
8. Termination.
(a) Upon the occurrence of a material breach or default as to any
obligation, term or provision contained herein by either party and the
failure of the breaching party to promptly pursue (within thirty (30)
days after receiving written notice thereof from the non-breaching
party) a reasonable remedy designed to cure (in the reasonable judgment
of the non-breaching party) such material breach or default, this
Agreement may be terminated by the non-breaching party by giving
written notice of termination to the breaching party, such termination
being immediately effective upon the giving of such notice of
termination.
(b) Upon the occurrence of bankruptcy of the other party, breach of
confidentiality, government legislative interference, or force majeure
extending beyond sixty (60) days, either party may immediately
terminate the Agreement.
9. Purchase Requirements. During the term of this Agreement, ENVISION
will exclusively purchase the Product from SIERRA. The parties
mutually agree to the Purchase Price of:
Product Purchase Price
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A. SierraSil Per Sierra Sil's wholesale price list.
10. Intellectual Property. SIERRA is responsible for all Patent costs for
the Product. SIERRA warrants it owns pending patents for the Product
in the U.S. and internationally. SIERRA hereby grants ENVISION an
exclusive, royalty-free sub-license of the Product's future patents,
and patent applications to distribute, sell and market the Finished
Product. SIERRA hereby agrees to indemnify, defend and hold ENVISION
harmless from any claims that the Product infringes upon any other
patent.
11. Trademarks SIERRA is the owner of the trademark "SierraSil". This
Agreement grants ENVISION a non-exclusive and non-royalty bearing
license to use the xxxx "SierraSil". SIERRA shall at all times be the
owner of the trademark and ENVISION shall acquire no rights thereto.
Upon termination, ENVISION shall have eighteen (18) months to exhaust
any inventories, packaging and advertising materials bearing the
"SierraSil" trademark and SIERRA shall have first option to buy back
any inventory at ENVISION's net purchase price.
12. Independent Contractor Status. The parties acknowledge that ENVISION is
an independent contractor and shall not be deemed to be an employee,
agent, or joint venturer of SIERRA for any purpose, including federal
tax purposes.
13. Warranty. SIERRA warrants that the Product shall be free from defects
in material and workmanship for the reasonable shelf life of the
Product. In the event of any breach of this warranty or in the event
any user of Product makes a claim that the Product was the cause of
personal injury or property damage (product liability claim), SIERRA
shall indemnify, defend and hold ENVISION harmless from any liability
occasioned by a breach of warranty or a product liability claim.
SIERRA warrants that it carries general liability insurance of not
less than $2 million per occurrence and product liability insurance of
not less than $5 million per occurrence and that, upon the execution
of this Agreement, it will name ENVISION as an additional insured on
such policies. SIERRA further warrants that the Product will not be
adulterated or misbranded within the meaning of any federal, state, or
local law or regulation or other applicable law. SIERRA agrees to
promptly notify ENVISION of any problem, anomaly, defect or condition
which would reasonably cause ENVISION's concern relative to stability,
reliability, form, fit, function or quality of the Product.
ENVISION warrants that the Finished Product will not be adulterated or
misbranded within the meaning of any federal, state, or local law or
regulation or other applicable law. In the event of any breach of this
warranty or in the event any user of the Finished Product makes a claim
that the Finished Product was the cause of personal injury or property
damage (product liability claim), ENVISION shall indemnify, defend, and
hold SIERRA harmless from any liability occasioned by a breach of
warranty or a product liability claim. ENVISION warrants that it
carries general liability insurance of $1 million per occurrence and
product liability insurance of not less than $2 million per occurrence
and that, upon execution of this Agreement, it will name SIERRA as an
additional insured on such policies.
14. Confidential Information. The parties acknowledge that, during the
term of this Agreement, each may receive certain Proprietary
Information of the other. Proprietary Information includes, without
limitation, formula, scientific studies, processes, plans,
formulations, technical information, new product information, methods
of product delivery, test procedures, product samples, specifications,
scientific, clinical, commercial and other information or data,
customer lists, customer contacts, and other distributors within the
Territory which are considered confidential in nature whether
communicated in writing or orally. The parties agree that each will
treat such information as confidential. Neither party shall have the
right to disclose the Proprietary Information to any third party
without the express written consent of the disclosing party. Neither
party may use the proprietary information except in furtherance of the
goals of this Agreement and is further prohibited from utilizing the
Proprietary Information directly nor indirectly to engage in any
business activity which is competitive with the other.
15. Force Majeure. In no event shall any party be responsible for its
failure to fulfill any of its obligations under this Agreement when
such failure is due to fires, floods, riots, strikes, freight
embargoes, acts of God or insurrection. In the event of a force
majeure, the party affected thereby shall give immediate written notice
to the other. If the event of force majeure continues for longer than
sixty (60) days, the party not so affected shall have the right to
terminate this Agreement.
16. Non-Waiver of Default. The failure of either party at any time to
require the performance by a party of any provision of this Agreement
shall in no way affect the right to require performance at any time
after such failure. The waiver of either party of a breach of any
provision of this Agreement shall not be taken to be a waiver of any
succeeding breach of the provision or as a waiver of the provision
itself.
17. Attorney's Fees. In the event either party is required to institute
litigation to enforce any provision of this Agreement, the prevailing
party in such litigation shall be entitled to recover all costs
including without limitation, reasonable attorney's fees and expenses
incurred in connection with such enforcement and collection.
18. Venue. This Agreement is deemed to have been entered into in the State
of Colorado, and its interpretation, construction, and the remedies
for its enforcement or breach are to be applied pursuant to and in
accordance with the laws of the State of Colorado.
19. Notices. Any and all notices or other communication required or
permitted to be given pursuant to this Agreement shall be in writing
and shall be construed as properly given if mailed first class, postage
prepaid to the address specified herein. Either party may designate, in
writing, a change of address or other place to which notices may be
sent.
If to SIERRA: If to LIFEUSA/ENVISION:
Mr. Xxxxxxx Xxxxxxx Xx. Xxxxxxx Xxxxxxx
Sierra Mountain Minerals Inc. Envision Health, Inc.
0000 Xxxx Xxxxxxxx, Xxxxx 000 2475 Broadway, Suite 202
Vancouver BC V6J4Z6 Xxxxxxx, XX 00000
Canada
20. Amendment. This Agreement shall not be modified or amended except by a
written agreement executed by both parties.
21. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter thereof and
supersedes all prior agreements, whether written or oral.
22. Assignment. The parties shall have the right to assign all, or part, of
its rights under this Agreement to any wholly owned subsidiary or
affiliate without the consent of the other Party. Any other assignment
by the parties, requires the prior written consent of the other Party.
ACKNOWLEDGEMENTS
Each party acknowledges that he or she has had an adequate opportunity
to read and study this Agreement. The understanding of the aforesaid articles
causes no difficulty whatsoever and each party has retained a copy of this
agreement immediately after the signing of it by all parties.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date and year first written above.
SIERRA MOUNTAIN MINERALS LIFEUSA/ENVISION HEALTH
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
December 8, 2005 December 7, 2005
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Date Date
