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EXHIBIT 99.8
EXCLUSIVE PRODUCT DISTRIBUTION AGREEMENT
THIS EXCLUSIVE PRODUCT DISTRIBUTION AGREEMENT ("Agreement") is made effective as
of the date set forth on the signature page hereof (the "Effective Date") by and
between Targeted Medical Foods, LLC ("Supplier"), a limited liability company
with its principal place of business located at 0000 Xxxxxxx Xxxx Xxxxxx, Xxxxx
000, Xxx Xxxxxxx, XX 00000, and Parmula Therapeutics, Inc. ("Distributor"),
whose principal place of business is located at 00000 Xxxxx 00xx Xxxxxx,
Xxxxxxx, Xxxxxxx, 00000.
RECITALS
A. Supplier has created or has rights to certain products known as the
"TMF Products" (as hereinafter defined), which are proprietary to
Supplier.
B. Distributor desires that Supplier appoint Distributor as Supplier's
exclusive distributor throughout the world with respect to the
distribution and sale of the TMF Products to potential purchasers.
C. Supplier desires to so appoint Distributor as Supplier's exclusive
distributor, all in accordance with the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of their mutual promises set forth below and
other valuable consideration, the parties agree as follows:
SECTION 1. SCOPE OF AGREEMENT
1.1 DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
(a) TMF PRODUCT LINE or TMF PRODUCTS refer only to the specific
dietary supplement amino acid proprietary blend formulas known
as "AppTrim" and "NutraSmokeless," which are formulated
utilizing a methodology known as "targeted cellular
technology" that allows for an increase in neurotransmitter
synthesis, and which are manufactured or purchased by or for
TMF and/or any subsidiaries or affiliates thereof.
(b) APPTRIM refers to a specific TMF Product licensed to
Distributor pursuant to this Agreement. In addition, AppTrim
is described as a dietary supplement based upon Tyrosine and
Histidine in a range of 50mg. to 150mg. and neurotransmitter
precursors with potentiators from plant sources intended for
weight loss to be used in conjunction with claims associated
to appetite suppression and or percent body fat reduction.
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(c) NUTRASMOKELESS refers to a specific TMF Product licensed to
Distributor pursuant to this Agreement. In addition, Nutra
Smokeless is described as a dietary supplement based upon
Glutamine in a range of 50mg. to 150mg. and neurotransmitter
precursors with potentiators from plant sources to be used in
conjunction with claims associated with reducing cigarettes
smoked.
(d) CONTRACT YEAR means any given twelve month period ending on an
anniversary of the Effective Date.
(e) LICENSE refers to the exclusive distribution license granted
to Distributor by Supplier pursuant to Section 1.2.
(f) UNIT shall mean one (1) standard unit of shipment of a
particular Product that equates to a one months supply. "Unit"
shall not refer to the individual Product dose.
(g) DEFAULT refers to a reasonable determination on the part of
either party hereto that the other party is not meeting a
specific obligation of such party as set forth in this
Agreement
(h) SPECIFICATIONS refers to the specific formulary listing the
ingredients (active and inert) of any TMF Product.
1.2 EXCLUSIVE LICENSE. Supplier hereby grants Distributor an exclusive
right and license to be Supplier's exclusive distributor throughout the
World with respect to the distribution and sale of the Licensed TMF
Products through any and all distribution channels established by
Distributor. The License granted hereby shall continue indefinitely
unless assigned or terminated pursuant to the provisions of Section 8.1
hereof. Upon termination of this License for any reason, all rights
granted herein shall immediately revert to Supplier.
(a) SCOPE: The License confers upon Distributor the exclusive
right to purchase the Licensed TMF Products directly from
Supplier, and to distribute Licensed TMF Products through
Distributor's distribution channels throughout the world.
Supplier further grants Distributor the right to sublicense
distribution rights within specific geographic areas
throughout the world; provided, however, that Distributor
shall not grant any rights to third party distributors that
are not contemplated by the License. No license is granted to
prepare, make, or have made derivative products based on the
licensed TMF Product Line.
(b) LICENSE TO ENHANCEMENTS AND FUTURE PRODUCTS: The License
granted herein shall automatically extend to include any
enhancements or improvements to the Licensed TMF Product Line.
In the event that sales of either of the TMF Products meet or
exceed the sum of $1,000,000 during any Contract Year,
(consecutive four quarters) the exclusive rights granted to
Distributor pursuant to
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this Agreement shall extend to one (1) additional new product
manufactured by or for Supplier (at Distributor's sole
discretion). Distributor will have the right to select a new
product from the TMF product line that is available and not
licensed to any other Licensee at the time of selection.
Distributor shall have up to 90 days following the date that
sales of any licensed Product exceed $1,000,000 to select a
new product from TMF. Upon written notification of a new
product selection by Distributor, the Licensed Product will be
subject to the same terms and conditions of this Agreement. It
is understood that for every licensed new product that meets
or exceeds the sum of $1,000,000 during any Contract Year, an
additional New Product may be selected by Distributor, under
the same terms and conditions of the Agreement.
(c) LICENSE FEE: Distributor shall pay to Supplier a one-time
License Fee of $50,000, which amount is due within ten (10)
days following the execution of this Agreement.
(d) LICENSE TERMINATION: The License granted hereby shall
automatically terminate upon the voluntary or involuntary
dissolution of Distributor. Upon such termination, the License
and all rights granted to Distributor in connection therewith
shall revert to Supplier, including any Intellectual Property
rights developed in connection with such License.
1.3 INDEPENDENT CONTRACTORS. Neither party shall, for any purpose, be
deemed to be an agent of the other party and the relationship between
the parties shall only be that of independent contractors.
1.4 NO OTHER TERMS AND CONDITIONS. The parties acknowledge and agree that
any terms and conditions of any purchase order, sales acknowledgement
or other document submitted to the other by either party which conflict
with the terms and conditions of this Agreement shall be of no force or
effect, and the terms and conditions hereof control and supersede such
conflicting documents and any course of conduct or usage of the trade
inconsistent with any of the terms and conditions hereof.
SECTION 2. PURCHASE AND SALE OF PRODUCT
2.1 PURCHASE AND SALE. Subject to the terms and conditions set forth
herein, Supplier agrees to sell and Distributor agrees to purchase
Products in accordance with Distributor's purchase orders and this
Agreement. In this regard:
(a) MINIMUM PURCHASE REQUIREMENT: For each Licensed TMF Product,
Distributor agrees to purchase a minimum of $500,000 of
product per year for two (2) Contract Years. The $500,000
yearly minimum product purchase shall be purchased from TMF at
the rate $125,000 per product per quarter. (the "Minimum
Purchase Requirement"). Once Distributor has purchased a total
of
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$500,000 of TMF Products in any Contract Year, the Minimum
Purchase Requirement will have been satisfied for that
Contract Year.
(b) COST OF PRODUCT: Distributor shall purchase product from TMF
at product manufacturing cost plus _________ percent (__%).
TMF shall provide Distributor with manufacturing invoices
referencing manufacturing costs. As of the date of this
Agreement, the anticipated per unit cost is as follows (final
price subject to actual manufacturing bid).
AppTrim: ____________ per unit.
NutraSmokeless: ____________ per unit.
(c) ADVANCE PAYMENT: Concurrent with each purchase order placed by
Distributor, Distributor shall advance to Supplier a deposit
of Fifty Percent (50%) of the total cost of such order, and
the remaining amount due under each purchase order shall be
payable within seven (7) days of product delivery.
(d) FIRST ORDER: Within forty five (45) days following the
execution of this Agreement, Distributor shall place its first
order with Supplier for the Licensed Products. Within ninety
(90) days following the first order, Distributor shall place a
second order meeting the Minimum Purchase Requirement, and
shall continue to do so on a quarterly basis for a period of
two (2) years following the execution hereof.
(e) FUTURE MINIMUM PURCHASE: Distributor and Supplier shall agree
in writing to minimum purchase requirements for the third,
fourth, and fifth Contract Years ninety (90) days prior to the
commencement of each such Contract Year. Should the parties
fail to come to an agreement as to the minimum purchase
requirement for any given year following the first two
Contract Years, the minimum purchase requirement for that year
shall reflect an increase of no less than ten percent (10%)
over the minimum purchase requirement in effect for the
previous contract year.
(f) TRADEMARKS: All Products will be sold under Supplier's
trademarks and tradenames only, using Supplier's trade dress,
and Supplier will retain all proprietary rights in and to the
same.
2.2 PURCHASE ORDERS AND FORECASTS. Within sixty (60) days following the
execution of this Agreement, Distributor shall provide Supplier with an
initial firm purchase order for the purchase of Products during the
first quarter of the Contract Year, and a forecast of its Product
requirements for the second quarter of the Contract Year. Continuing
thereafter, Distributor will provide Supplier, on or before the last
day of each quarter of the Contract Year, an additional firm purchase
order for Products for that quarter and a revised or supplemental
forecast of Product requirements for
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ensuing quarters, it being the intent that in general Distributor will
provide three (3) months purchase orders and three (3) months forecasts
on a rolling basis during the term of this Agreement. Distributor's
purchase orders for a given month, in order to be conforming, must
specify only delivery dates during that month. Distributor's forecasts
are non-binding, but shall be Distributor's reasonable best estimate of
its future Product requirements.
2.3 ACCEPTANCE OF PURCHASE ORDERS. Within ten (10) days of receipt of a
purchase order from Distributor, Supplier may request in writing a
modification of the Product designations, quantities, delivery dates,
and special shipment instructions specified thereon. Supplier's failure
to request a modification or to reject a purchase order within the ten
(10) day period shall be deemed an acceptance thereof. Upon actual or
deemed acceptance of a purchase order by Supplier, a binding contract
for the sale and purchase of Product shall exist between Supplier and
Distributor in accordance with this Agreement and Distributor's
purchase order. If Supplier requests modification of any of the
aforementioned terms of Distributor's purchase order, then Distributor
shall have ten (10) days following receipt of the request to accept or
reject Supplier's modifications. If Distributor does not respond or
object to Supplier's request within ten (10) days of receipt, the
modifications specified thereon shall be deemed accepted by
Distributor. Upon Distributor's actual or deemed acceptance of purchase
order modifications by Supplier, a binding contract for the sale and
purchase of Products shall exist between Supplier and Distributor in
accordance with this Agreement and Distributor's purchase order as so
modified. The foregoing modification procedure shall apply only with
the regard to Product designations, quantities, delivery dates, and
special shipment instructions. With respect to all other terms,
Supplier and Distributor agree that the terms and conditions of this
Agreement shall apply to the sale of Product hereunder and cannot be
modified or amended except as provided in Section 12.8.
2.4 NON-CONFORMING ORDERS. Supplier will use reasonable commercial efforts
to fill non-conforming purchase orders for Products in accordance with
Distributor's requests.
2.5 SHIPMENT. Supplier will ship Product to Distributor to the delivery
destination(s) specified in Distributor's purchase orders. Supplier
shall arrange prepaid insured common carrier transportation of the
Products in accordance with Distributor's instructions, at
Distributor's expense. Supplier may not undership or overship by more
than ten percent (10%) without Distributor's prior written consent.
(a) RETURNS: For a period of ninety (90) days following its
receipt of any shipment, Distributor shall have the right to
return to Supplier for a full refund any shipment of Product
that Distributor has determined is defective or otherwise does
not meet the Specifications. Supplier shall have the right to
replace any
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returned Product units for other Product units that have been
deemed non-defective.
2.6 DELIVERY, TITLE AND RISK OF LOSS. For purposes of this Agreement,
delivery to or on behalf of Distributor will occur when the Products
are placed in the possession of the common carrier by Supplier. Title
and risk of loss or damage with respect to the Products shall pass to
Distributor upon delivery by Supplier to one common carrier.
2.7 PACKAGING FOR SHIPMENT. Unless otherwise agreed in advance, all
Products shall be packed by Supplier as Supplier reasonably deems
appropriate to minimize risk of loss or damage in transit.
SECTION 3. PRICES AND PAYMENT
3.1 PRICE. The prices for the Products (including volume discounts) for the
first twelve (12) months of this Agreement (the first "Contract Year")
are as set forth on Exhibit A and by this reference incorporated
herein. Prices do not include applicable sales or use taxes and
shipping costs (freight and insurance), which shall be separately
stated on Supplier's invoices and born by Distributor.
3.2 PRICE CHANGES. The prices set forth on Exhibit A shall be revised
annually, on or before the start of each Contract Year, to reflect any
increase or decrease in manufacturing costs for the Products reasonably
projected by Supplier for the next Contract Year (in each case,
determined in accordance with generally accepted accounting principles,
consistently applied), with the first pricing review occurring ten (10)
months after the Effective Date of this Agreement. Price changes are
not effective unless mutually agreed to in writing (agreement not to be
unreasonably withheld if consistent with this Section 3.2), with the
change being effective with respect to invoices for shipment during the
next ensuing Contract Year. Supplier shall demonstrate any increase in
manufacturing costs to the reasonable satisfaction of Distributor.
(a) AUDITS: In the event Supplier indicates an intent to increase
the price of any Product, upon the written request of
Distributor, Supplier shall provide Distributor with an
audited financial statement of Supplier's finances for the
preceding year. Such audited financial statement shall be
prepared at Distributor's expense. In addition, to validate
the necessity of the requested price increase, Distributor's
representatives shall have the right, during ordinary business
hours and with reasonable prior notice, to inspect Supplier's
books and records as they pertain to this Agreement.
3.3 TAXES. Distributor shall be responsible for all VAT, sales, use and
other similar taxes applicable to Product supplied under this
Agreement, unless Distributor provides written proof of exemption.
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3.4 PAYMENT. Supplier shall issue invoices for Product on or after the date
of shipment. Supplier shall advance a deposit of fifty percent (50%)
with any purchase order. Payment shall be due within seven (7) days of
product delivery. A late charge at the rate of one and one-half percent
(1 -1/2%) per month or the highest rate allowed by law, whichever is
lower, shall be applied to the total invoice price for payments not
received within thirty (30) days after the date of delivery.
Conversely, Supplier shall offer Distributor a two percent (2%)
discount on any given invoice whenever such invoice is paid within
three (3) days following delivery. Supplier reserves the right to
refuse shipment on any new purchase order when payment is more than
thirty (30) days past due for a previous invoice, until such previous
invoice is paid in full.
SECTION 4. SPECIFICATIONS, QUALITY CONTROL, ACCEPTANCE
4.1 SPECIFICATIONS. Subject to Section 4.3, Supplier shall produce copies
of the Products in all material respects in accordance with their
Specifications and all applicable federal, state and local laws and
regulations.
4.2 SPECIFICATION CHANGES. Supplier reserves the right to change the
Specifications by written notice to Distributor. If Distributor objects
to any Specification change proposed by Supplier, then the parties will
consult in good faith to resolve their differences and Supplier will
not implement the change without Distributor's consent (not to be
unreasonably withheld).
4.3 QUALITY ASSURANCE. Supplier shall be responsible for ensuring that the
Products meet Supplier's internal quality assurance tests and
procedures prior to shipment hereunder. Upon request, Supplier will
provide Distributor with written certification by a responsible
supervisory employee of Supplier that the requirements of this Section
4.3 have been met.
4.4 ACCEPTANCE. Products shipped hereunder shall be subject to acceptance
by Distributor within fifteen (15) days of receipt. Distributor shall
promptly inform Supplier of any Product rejected as non-conforming and
at Supplier's request shall return non-conforming Products to Supplier,
at Supplier's risk of loss and expense. Products as to which no
rejection has occurred within fifteen (15) days shall be deemed
accepted.
SECTION 5. WARRANTY, DISCLAIMER, LIMITATION
5.1 PRODUCT WARRANTY. Supplier warrants to Distributor that the Products
purchased hereunder shall be free from all defects in materials,
workmanship, and packaging, and shall conform in all material respect
to the Specifications, provided the Product in question has been stored
and used in accordance with ordinary industry practices and conditions.
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5.2 REMEDIES. In the event that a Product does not comply with the product
warranty set out in Section 5.1, and such non-conforming Product is
returned to Supplier within the warranty period by Distributor freight
prepaid, Supplier will replace such non-conforming Product at no
additional charge to Distributor; the replaced Product will be returned
to Distributor, freight prepaid.
5.3 DISCLAIMER OF WARRANTIES. The foregoing express warranties are limited
to Supplier and are not transferable and are in lieu of any other
warranty by Supplier with respect to Products furnished hereunder.
SUPPLIER GRANTS NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
5.4 LIMITATION OF LIABILITY. EXCEPT AS PROVIDED FOR IN SECTION 6, SUPPLIER
SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE SALE OR USE OF
ITS PRODUCTS, WHETHER OR NOT SUPPLIER HAS ADVANCE NOTICE OF THE
POSSIBILITY OF SUCH DAMAGES. IF SUPPLIER BREACHES ANY PROVISION OF THIS
AGREEMENT, SUPPLIER'S SOLE AND EXCLUSIVE MAXIMUM LIABILITY, WHETHER
BASED IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED
THE CONTRACT PRICE FOR THE PARTICULAR PRODUCTS.
SECTION 6. INDEMNIFICATION
6.1 SUPPLIER INDEMNIFICATION: Supplier hereby agrees to indemnify and hold
harmless Distributor, including its affiliates, subsidiaries,
successors, assigns, officers, directors, agents, and employees, from
and against any and all liabilities, damages, losses, expenses, claims,
demands, suits, fines, or judgments (including, but not limited to,
reasonable attorneys' fees, expert witness costs, court costs, and
expenses) that may at any time be threatened against, suffered by,
accrued against, charged to, or recoverable against Distributor in any
forum by reason of: (1) a challenge to any patent, copyright,
trademark, or other intellectual property right associated with the TMF
Products; (2) any undisclosed alleged defect in the TMF Product Line,
including (but not limited to) a failure to design, manufacture, and
label the Products accordance with applicable federal, state, and local
regulations; (3) Supplier's failure to obtain or maintain all permits
and licenses required under law in relation to the manufacture of the
Products or this Agreement; and (4) any financial loss, injuries, or
death of persons or loss of, damage to, or destruction of property
(including loss of use thereof) arising directly out of the
distribution of Supplier's products by or through Distributor
(including any punitive and/or exemplary damages associated with such
claims), provided that Distributor maintains a Safety Committee. With
the
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exception of any liability to Distributor for personal injury or death
caused by Supplier's negligence, Supplier's liability under this
Agreement shall not exceed the total dollar amount received by Supplier
in connection with the sale of Products to Distributor determined as of
the time of claim for indemnification.
6.2 DISTRIBUTOR INDEMNIFICATION: Distributor agrees to indemnify and hold
harmless Supplier for damages resulting from any false or misleading
claims or statements made by Distributor regarding the Licensed
Products, including but not limited to, legal fees to defend regulatory
challenge of misleading claims. Distributor shall obtain the prior
written consent of Supplier for all advertising, claims and promotional
materials as defined in the Joint Venture Agreement (Section 4.6) by
and between Targeted Medical Foods, LLC and DB Capital Management, Inc.
SECTION 7. PROPRIETARY INFORMATION
7.1 PROTECTION OF PROPRIETARY INFORMATION. Supplier and Distributor agree
to keep in confidence and not disclose to others all knowledge,
information and data furnished to either by the other party and claimed
by the other party to be proprietary, provided such information is
given in writing or, if oral, is reduced to writing within thirty (30)
days and such writing is marked to indicate the claims of ownership
and/or secrecy. Supplier and Distributor agree that neither shall use,
nor reproduce for use in any way, any proprietary information of the
other except in furtherance of the relationship set forth herein.
Supplier and Distributor agree to protect the proprietary information
of the other with the same standard of care and procedures used by each
to protect its own proprietary information of similar importance but at
all times using at least a reasonable degree of care.
7.2 LIMITATIONS. Section 7.1 shall not be applicable and shall impose no
obligation on a party with respect to any portion of proprietary
information which:
(a) Was at the time received or which thereafter becomes, through
no act or failure on the part of such party, generally known
or available to the public;
(b) Is known to such party at the time of receiving such
information as evidenced by documentation then rightfully in
the possession of either party;
(c) Is furnished to others by the other party without restriction
of disclosure;
(d) Is thereafter rightfully furnished to such party by a third
party without restriction by that third party on disclosure;
or
(e) Has been disclosed pursuant to the requirements of law or
court order without restrictions or other protection against
public disclosure; provided, however, that the other party
shall have been given a reasonable opportunity to resist
disclosure and/or to obtain a suitable protective order.
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7.3 SURVIVAL. The covenants of confidentiality set forth herein shall
survive and continue and be maintained from the Effective Date hereof
until three (3) years after termination of this Agreement.
SECTION 8. TERM AND TERMINATION
8.1 TERM. The initial term of this Agreement shall commence upon the
Effective Date and shall continue for a period of five (5) Contract
Years (the "Initial Term"). Thereafter, this Agreement shall be
automatically renewed for successive one (1) year terms unless
terminated by either party by ninety (90) days written notice given on
or before the commencement of any renewal term.
8.2 TERMINATION. Notwithstanding the effective period of this Agreement as
set forth in this Section 8, the parties may mutually agree in writing
to the early termination of this Agreement at any time during the
effective period hereof.
8.3 DEFAULT: The occurrence of any one or more of the following events
shall constitute an event of default (the "Event of Default") pursuant
to the terms of this Agreement:
(a) Any party fails to timely, fully, and properly perform any
material covenant, agreement, obligation, term, or condition
contained herein, and such failure continues for a period of
thirty (30) days after receipt by the defaulting party of
written notice thereof from the other party.
(b) Any party: (i) ceases to do business; (ii) takes any action or
otherwise commences legal proceedings to declare bankruptcy,
or to wind-up, liquidate, dissolve, or reorganize (other than
a reorganization while solvent), or (iii) has appointed on its
behalf a receiver, trustee, or similar officer.
8.4 RIGHTS UPON DEFAULT: Upon the occurrence of an Event of Default, the
non-defaulting party shall have the right to: (i) terminate this
Agreement and all rights granted hereunder; (ii) retain a third party
to take on the responsibilities of the defaulting party as set forth
herein until the default is cured; and/or (iii) seek all legal and
equitable remedies to which it is entitled, including without
limitation all actual and direct damages it may have suffered by virtue
of the breach.
SECTION 9. MISCELLANEOUS PROVISIONS
9.1 NOTICES: Any notice or communication required under this Agreement to
be made to either party shall be typewritten in English and shall be
considered delivered when personally delivered, delivered by registered
mail with confirmed receipt (postage prepaid), or delivered by
overnight courier to the address of the party as set forth
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above. A notice sent by facsimile transmission shall be deemed to have
been delivered on transmission provided that a copy of such notice was
also sent via registered mail with confirmed receipt.
9.2 TITLES AND CAPTIONS: All article and section titles or captions in this
Agreement are for convenience only. They shall not be deemed a part of
this Agreement, and in no way define, limit, extend, or describe the
scope or intent of any of its provisions.
9.3 BINDING EFFECT: This Agreement shall be binding upon and inure to the
benefit of the Parties and their successors, legal representatives, and
permitted assigns.
9.4 ENTIRE AGREEMENT: This Agreement constitutes the entire agreement
between the parties hereto, and supersedes all prior and
contemporaneous agreements, arrangements, negotiations, and
understandings between the parties hereto relating to the subject
matter hereof. There are no other understandings, statements, promises
or inducements, oral or otherwise, contrary to the terms of this
Agreement. No representations, warranties, covenants, or conditions,
express or implied, whether by statute or otherwise, other than as set
forth herein have been made by any party hereto.
9.5 NO WAIVER: No waiver of any term, provision, or condition of this
Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or shall constitute, a waiver of any
other provision hereof, whether or not similar, nor shall any such
waiver constitute a continuing waiver, and no waiver shall be binding
unless executed by the party making such waiver.
9.6 PARTIES IN INTEREST: Nothing in this Agreement (whether express or
implied) is intended to confer upon any person other than the parties
hereto and their respective successors and permitted assigns, any
rights or remedies under or by reason of this Agreement, nor is
anything in this Agreement intended to relieve or discharge the
liability of any other party hereto, nor shall any provision hereof
give any entity any right to subrogation against any party.
9.7 RELATIONSHIP: The relationship between the parties shall be limited to
the performance of the terms and conditions of this Agreement. Nothing
herein shall be construed to create a general partnership, joint
venture, or other arrangement between the parties, or to authorize any
party to act as a general agent for another, or to permit any party to
bind another other than as set forth in this Agreement, or to borrow
money on behalf of another party, or to use the credit of any party for
any purpose.
9.8 BRANDING: Either party may use the other's logos, trademarks,
tradenames, and trade dress for advertising purposes with prior written
approval, which shall not be unreasonably withheld. No xxxx of supplier
may be placed upon products not manufactured or otherwise supplied by
Supplier.
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9.9 COUNTERPARTS: This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.10 INVALIDITY OF PROVISIONS: If any provisions of this Agreement is or
becomes wholly or partly invalid, illegal, or unenforceable:
(a) The validity, legality, and enforceability of the remaining
provisions shall continue in force unaffected, and
(b) The parties shall meet as soon as possible and negotiate in
good faith upon a replacement provision that is legally valid
and that as nearly as possible achieves the objectives of the
Agreement and produces an equivalent economic effect. A
replacement provision shall apply as of the date that the
replaced provision had become invalid, illegal, or
unenforceable.
9.11 TRANSACTION EXPENSES: Each party shall pay its own fees and expenses
(including legal and accounting fees) incident to the preparation and
execution of this Agreement.
9.12 FORCE MAJEURE: Neither party shall be liable to the other in the event
and to the extent that performance is delayed or prevented by any cause
reasonably beyond such party's control, including, but not limited to,
acts of God, public enemies, war, civil disorder, fire, flood,
explosion, labor disputes, or any acts or orders of any governmental
authority, inability to obtain supplies or materials (including,
without limitation, computer hardware) or any delay or deficiency
caused by the electrical or telephone line suppliers or other common
carriers (herein referred to as "Force Majeure"). A party's failure to
perform due to the existence of a Force Majeure event shall be excused
only for so long as the Force Majeure event continues.
9.13 GOVERNING LAW/ARBITRATION: This Agreement shall be construed and
governed in accordance with the laws of the United States and the State
of Arizona. Any controversy or claim arising out of or relating to this
agreement shall be determined by arbitration in accordance with the
International Arbitration Rules of the International Arbitration
Association. The number of arbitrators shall be three (3) and the place
of arbitration shall be Phoenix, Arizona, and the language of the
arbitration shall be in English. Arbitration proceedings shall take no
more than three (3) days, and no party shall be entitled to conduct
discovery in connection with any such arbitration.
9.14 FURTHER DOCUMENTS: The parties agree to execute such other documents as
may be necessary to effectuate the purposes of this Agreement as set
forth above.
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IN WITNESS WHEREOF, the parties have executed the Agreement as of the
date last written below.
TARGETED MEDICAL FOODS, LLC PARMULA THERAPEUTICS, INC.
BY:__________________________________ BY:__________________________________
NAME:________________________________ NAME:________________________________
TITLE:_______________________________ TITLE:_______________________________
DATE:________________________________ DATE:________________________________
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