SUPPLY AND DISTRIBUTION AGREEMENT
THIS SUPPLY AND DISTRIBUTION AGREEMENT (the "Agreement") is entered into as
of the 4th day of October, 2001 by and between Imagenetix, Inc., a California
corporation ("Imagenetix"), whose principal place of business is 00000 Xxxx
Xxxxxxxx Xxxx, Xxxxx #000, Xxx Xxxxx, Xxxxxxxxxx 00000; and Vibrant Health
Inc., ("Vibrant"), whose principal place of business is 0000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, Imagenetix has developed and manufactures dietary supplements,
creams, liquids and powders, and
WHEREAS, Vibrant is engaged in the business of marketing and distributing
health and nutritional products and desires to market, sell and distribute
Imagenetix's products;
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
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this Section 1 shall have the meanings indicated below:
1.1 "Products" shall mean Products which Imagenetix has developed and
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mutually agreed can be marketed by Vibrant.
1.2 "Intellectual Property" shall mean all ideas, inventions, patents and
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patent applications, claims, data, trademarks, trade dress, trade
secrets, instructions, processes, formulas and manufacturing data and
information, owned or controlled by Imagenetix and necessary or useful
to the formulation and or manufacture of the Products, and all
improvements thereto.
1.3 "Licensed Territory" shall be worldwide.
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2. PRICE Prices for all Products ordered hereunder shall be in accordance with
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attached "Exhibit A," which is incorporated herein by reference.
2.1 The Product purchased hereunder are purchased for resale, therefore,
the prices specified herein are exclusive of sales, use or similar
taxes.
2.2 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.
3. SHIPMENT, DELIVERY, AND ACCEPTANCE
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3.1 Packaging and method of shipment utilized by Imagenetix shall be
consistent with the nature of the Product shipped and hazards of
transportation, in order to assure safe transit to destination.
3.2 Vibrant's purchase order number and item numbers will appear on all
invoices and packing slips and be referenced on all correspondence
regarding such.
3.3 Vibrant's acceptance of any Product delivered hereunder shall be
considered complete unless notification is given to Imagenetix within
forty-five (45) days.
4. RECORD KEEPING
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4.1 Imagenetix shall keep all records relating the manufacturing of
Product for a minimum of seven (7) years.
4.2 Imagenetix shall retain 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 Product lots produced by Imagenetix for
Vibrant 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 the Product for a
period of seven (7) years.
5. QUALITY LEVELS The standard for acceptance or rejection of material by
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Vibrant for use in the Product or process shall be based upon the
definitions and criteria defined in each Product specification.
6. NOTIFICATION Imagenetix agrees to notify Vibrant (by certified Mail) within
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thirty (30) calendar days of Imagenetix's recognition of any problem,
anomaly, defect or condition (planned or unplanned) that would reasonably
cause Vibrant concern relative to instability, interchangeability,
availability, reliability, maintainability, form, fit, function, or quality
of the Product.
7. FORMULA PHYSICAL STABILITY Imagenetix is fully responsible for any formula
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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.
8. PRODUCT TESTING Imagenetix agrees to perform ongoing quality control
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Product testing to comply with Vibrant's specifications, at Imagenetix's
facility, or any mutually agreed to facility in all cases where Imagenetix
does not perform needed tests. In all cases, for Imagenetix's tests to
comply with this requirement, a sufficient quantity of the Product and/or
time must be applied to the units/material under test to meet or exceed any
existing legal or regulatory standards.
9. GENERAL QUALITY ITEMS Imagenetix shall make free and available, upon
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request of Vibrant, any document, listing and/or certificate as may be
required of Vibrant by any state, federal, or foreign regulatory agency.
10. TERM AND RENEWAL This Agreement shall commence upon the date first written
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above and shall continue for five (5) years thereafter, unless sooner
terminated pursuant to the provisions herein. This Agreement may be
automatically renewed for additional terms of two (2) years each, unless
either party notifies the other in writing of its intent not to renew,
which notice must be provided within one hundred twenty (120) days of the
renewal period.
11. CONFIDENTIAL INFORMATION Imagenetix will not release, republish or
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otherwise utilize the customer list of Vibrant without specific
authorization.
12. IMAGENETIX WARRANTIES
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12.1 Imagenetix warrants that all units of the Product sold and delivered
to, or on behalf of, Vibrant shall, as of the date of delivery not be
misbranded within the meaning of any laws or regulations.
12.2 Imagenetix warrants that all Products sold and delivered to Vibrant
shall be free from adulteration, impurities, defects or any other
material unsafe for human consumption.
12.3 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.
13. GENERAL PROVISIONS
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13.1 Complete Agreement This Agreement shall become binding on the parties
when signed by authorized representatives of the parties, and shall
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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 officer of the party against whom the same is ought to be
enforced. This Agreement shall not be modified or altered by any
subsequent course of performance between the parties.
13.2 Governing Contract The terms and conditions herein shall govern all
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purchase orders placed thereunder, and shall override all printed
terms and conditions contained on the purchase order or
acknowledgement form issued by either Vibrant or Imagenetix.
13.3 Notices Any notices required to be given under the terms of this
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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.
13.4 Enforceability If any provision(s) of this Agreement shall be held to
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be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
13.5 Dispute Resolution In the event of a dispute between Vibrant and
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Imagenetix arising out of or related to this Agreement the parties
shall set up an initial negotiation meeting to negotiate, in good
faith, a settlement of the dispute. If, within thirty (30) days after
such meeting, the parties have not succeeded in settling the dispute,
they shall submit the dispute to mediation in accordance with the
procedures of a mutually acceptable neutral Alternative Dispute
Resolution provider not affiliated with either party. If the parties
are not successful in settling the dispute within thirty (30) days
after the mediation session, then the dispute shall be submitted to
binding arbitration under a mutually agreed to organization not
affiliated with either party. In the event of a dispute, the
prevailing party shall be reimbursed attorney's fees and reasonable
travel and accommodation costs by the other party.
13.6 Waiver The failure of either party to insist, in any one of more
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instances, upon strict performance of any of the terms of this
Agreement, or to exercise any rights herein conferred shall not be
construed as a waiver of the right to assert or rely on any such terms
or rights on any future occasion.
IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the
date first above written.
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IMAGENETIX, INC. VIBRANT HEALTH INC.
/s/ Xxxxxxx X. Xxxxxxx /s/Xxxxxx XxXxxx
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By: Xx. Xxxxxxx X. Xxxxxxx By: Xxx XxXxxx
Its: President Its: President
____________________ _____________________
By: By:
Its: Its:
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