EXHIBIT 10.76
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT (this Agreement) effective as of December 1,
1997, is by and between CARALOE, INC., a Texas corporation (Seller),
and MET-TRIM, a Texas LLC (Buyer),
WITNESSETH:
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to
purchase from Seller, bulk aloe xxxx mucilaginous polysaccharide
(hereinafter referred to under the product name of MANAPOL powder)
in the quantities, at the price, and upon the terms and conditions
hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto agree
as follows:
1. Term. The term of this Agreement shall commence on December
1, 1997, and shall end at midnight on December 31, 2000, unless
further extended or sooner terminated as provided herein (such term,
as extended, herein called the Term). The Term (including each one-
year extension of the Term) shall be extended automatically for an
additional one-year period, provided that, at least thirty (30) days
prior to the end of the Term, Seller and Buyer mutually agree in
writing on the quantity and price of MANAPOL to be sold by Seller
and purchased by Buyer hereunder during such additional one-year
period. At least sixty (60) days prior to the end of the Term,
Seller and Buyer shall commence good faith negotiations to determine
and agree upon such quantity and price for such additional one-year
period. If the parties are unable to so agree on such quantity and
price, this Agreement shall terminate effective at the end of the
current Term. Nothing contained in this Paragraph 1 shall be deemed
to (i) obligate the parties to agree upon such quantity and price,
(ii) obligate a party to negotiate with the other party regarding
such quantity and price if such other party is then in breach of or
in default under this Agreement or (iii) limit the rights to the
parties under Paragraph 8 hereof.
2. Territory. Buyer is permitted to market agreed upon products
containing Manapol in the United States, Mexico, Canada, Australia,
New Zealand and any other mutually agreed upon territories. The use
of the Manapol trademark is, however, covered by the separate
Trademark licensing agreement entered into by the parties hereto.
3. Sale and Purchase License.
(a) Subject to the terms and conditions of this Agreement,
beginning in December 1997 Seller shall sell to Buyer, and Buyer
shall purchase from Seller, not less than 60 kilograms of Manapol
powder or other mutually agreed upon product per quarter.
(b) Buyer agrees that all MANAPOL powder purchased by it
hereunder shall be used only (i) as an additive in human or animal
health food products (in capsule form) manufactured by or for Buyer
that are intended for sale to the ultimate consumer in the United
States or other mutually agreed upon countries or territories. Such
food products are herein called Buyer Products.
4. Quality. Seller warrants to Buyer that all MANAPOL powder
sold by Seller pursuant to this Agreement will conform to the quality
specifications set forth in Exhibit A to this Agreement. EXCEPT AS
PROVIDED IN THIS PARAGRAPH 4, THERE ARE NO WARRANTIES OR
REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS AND FITNESS FOR A
PARTICULAR PURPOSE, MADE WITH RESPECT TO THE MANAPOL POWDER TO BE
SOLD HEREUNDER, AND NONE SHALL BE IMPLIED BY LAW.
5. Deliveries. Buyer shall instruct Seller from time to time
during the Term, by placing a purchase order with Seller reasonably
in advance of the date Buyer desires MANAPOL powder to be delivered
to it hereunder, (i) as to the quantities of MANAPOL powder to be
delivered to Buyer, (ii) as to the specific date of delivery, (iii)
as to the specific location of delivery and (iv) as to the carrier or
particular type of carrier for such delivery. During the Term, Buyer
shall provide Seller (a) on a yearly basis a nonbinding forecast of
Buyer's minimum and maximum aggregate delivery requirements for
MANAPOL powder for such period, and (b) on a quarterly basis a
forecast acceptable to Seller (which shall be binding on Buyer) of
Buyer's minimum and maximum delivery requirements for MANAPOL powder
for each month of the next three (3) month period. The quantities of
MANAPOL powder ordered by Buyer pursuant to this Agreement from time
to time shall be spaced in a reasonable manner, and Buyer shall order
such quantities in accordance with Buyer's binding forecasts. In no
event shall Seller be required to deliver to Buyer in any three-month
period a quantity of MANAPOL powder in excess of 150% of the maximum
delivery requirement for such period set forth in the binding
forecast for such period accepted by Seller. Deliveries of MANAPOL
powder shall be made by Seller under normal trade conditions in the
usual and customary manner being utilized by Seller at the time and
location of the particular delivery. The MANAPOL powder delivered
to Buyer hereunder shall be packaged in suitable containers to be
determined by the Seller. All deliveries of MANAPOL powder to Buyer
hereunder shall be made by Seller F.O.B. at the facilities of Seller
or its affiliates.
6. Price. All MANAPOL powder to be purchased by Buyer under
this Agreement shall be purchased by it, during the first year of the
Term, at a price as outlined in Attachment B, and during each year
(if any) of the Term, at the price per kilogram agreed upon by the
parties for such additional year pursuant to the provisions of
Paragraph 1 hereof. Buyer shall bear all freight, insurance and
similar costs, and all sales taxes, with respect to such purchases.
The purchase price of MANAPOL powder, together with all related
freight, insurance and similar costs, and sales taxes, shall be paid
by Buyer to Seller within thirty (30) days after the date of invoice.
7. Confidentiality. In the performance of Seller's obligations
pursuant to this Agreement, Buyer may acquire from Seller or its
affiliates technical, commercial, operating or other proprietary
information relative to the business or operations of Seller or its
affiliates (the Confidential Information). Buyer shall maintain the
confidentiality, and take all necessary precautions to safeguard the
secrecy, of any and all Confidential Information it may acquire from
Seller or its affiliates. Buyer shall not use any of such
Confidential Information for its own benefit or for the benefit of
anyone else. Buyer shall not publicly disclose the existence of this
Agreement or the terms hereof without the prior written consent of
Seller.
8. Force Majeure. Seller shall not have any liability hereunder
if it shall be prevented from performing any of its obligations
hereunder by reason of any factor beyond its control, including,
without limitation, fire, explosion, accident, riot, flood, drought,
storm, earthquake, lightning, frost, civil commotion, sabotage,
vandalism, smoke, hail, embargo, act of God or the public enemy,
other casualty, strike or lockout, or interference, prohibition or
restriction imposed by any government or any officer or agent thereof
(Force Majeure), and Seller's obligations, so far as may be
necessary, shall be suspended during the period of such Force Majeure
and shall be cancelled in respect of such quantities of MANAPOL
powder as would have been sold hereunder but for such suspension.
Seller shall give to Buyer prompt notice of any such Force Majeure,
the date of commencement thereof and its probable duration and shall
give a further notice in like manner upon the termination thereof.
Each party hereto shall endeavor with due diligence to resume
compliance with its obligations hereunder at the earliest date and
shall do all that it reasonably can to overcome or mitigate the
effects of any such Force Majeure upon its obligations under this
Agreement.
9. Rights Upon Default.
(a) Seller's Rights Upon Default. If Buyer (i) fails to purchase
the quantities of MANAPOL powder specified for purchase by Buyer
hereunder, (ii) fails to make a payment hereunder when due or (iii)
otherwise breaches any term of this Agreement, and such failure or
breach is not cured to Seller's reasonable satisfaction within five
(5) days (in the case of a failure to make a payment) or thirty (30)
days (in any other case) after receipt of notice thereof by Buyer, or
if Buyer fails to perform or observe any covenant or condition on its
part to be performed when required to be performed or observed, and
such failure continues after the applicable grace period, if any,
specified in the Agreement, Seller may refuse to make further
deliveries hereunder and may terminate this Agreement upon notice to
Buyer and, in addition, shall have such other rights and remedies,
including the right to recover damages, as are available to Seller
under applicable law or otherwise. If Buyer becomes bankrupt or
insolvent, or if a petition in bankruptcy is filed by or against it,
or if a receiver is appointed for it or its properties, Seller may
refuse to make further deliveries hereunder and may terminate this
Agreement upon notice to Buyer, without prejudice to any rights of
Seller existing hereunder or under applicable law or otherwise. Any
subsequent shipment of MANAPOL powder by Seller after a failure by
Buyer to make any payment hereunder, or after any other default by
Buyer hereunder, shall not constitute a waiver of any rights of
Seller arising out of such prior default; nor shall Seller's failure
to insist upon strict performance of any provision of this Agreement
be deemed a waiver by Seller of any of its rights or remedies
hereunder or under applicable law or a waiver by Seller of any
subsequent default by Buyer in the performance of or compliance with
any of the terms of this Agreement.
(b) Buyer's Rights Upon Default. If Seller fails in any material
respect to perform its obligations hereunder, and such failure is not
cured to Buyer's reasonable satisfaction within 30 days after receipt
of notice thereof by Seller, Buyer shall have the right to refuse to
accept further deliveries hereunder and to terminate this Agreement
upon notice to Seller and, in addition, shall have such other rights
and remedies, including the right to recover damages, as are
available to Buyer under applicable law or otherwise. Any subsequent
acceptance of delivery of MANAPOL powder by Buyer after any default
by Seller under this Agreement shall not constitute a waiver of any
rights of Buyer arising out of such prior default; nor shall Buyer's
failure to insist upon strict performance of any provision of this
Agreement be deemed a waiver by Buyer of any of its rights or
remedies hereunder or under applicable law or a waiver by Buyer of
any subsequent default by Seller in the performance of or compliance
with any of the terms of this Agreement.
10. Disclaimer and Indemnity. Buyer shall assume all financial
and other obligations for Buyer Products, and Seller shall not incur
any liability or responsibility to Buyer or to third parties arising
out of or connected in any manner with Buyer Products. In no event
shall Seller be liable for lost profits, special damages,
consequential damages or contingent liabilities arising out of or
connected in any manner with this Agreement or Buyer Products. Buyer
shall defend, indemnify and hold harmless Seller and its affiliates,
and their respective officers, directors, employees and agents, from
and against all claims, liabilities, demands, damages, expenses and
losses (including reasonable attorneys' fees and expenses) arising
out of or connected with (i) any manufacture, use, sale or other
disposition of Buyer Products, or any other products of Buyer, by
Buyer or any other party and (ii) any breach by Buyer of any of its
obligations under this Agreement.
11. Equitable Relief. A breach by Buyer of the provisions of
Paragraph 3(b) shall cause Seller to suffer irreparable harm and, in
such event, Seller shall be entitled, as a matter of right, to a
restraining order and other injunctive relief from any court of
competent jurisdiction, restraining any further violation thereof by
Buyer, its officers, agents, servants, employees and those persons in
active concert or participation with them. The right to a
restraining order or other injunctive relief shall be supplemental to
any other right or remedy Seller may have, including, without
limitation, the recovery of damages for the breach of such provisions
or of any other provisions of this Agreement.
12. Survival. The expiration or termination of the Term shall not
impair the rights or obligations of either party hereto which shall
have accrued hereunder prior to such expiration or termination. The
provisions of Paragraphs 3(b), 7, 9, 10 and 11 hereof, and the rights
and obligations of the parties thereunder, shall survive the
expiration or termination of the Term.
13. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Texas.
14. Succession. Neither party hereto may assign or otherwise
transfer this Agreement or any of its rights or obligations hereunder
(including, without limitation, by merger or consolidation) without
the prior written consent of the other party; provided, however, that
Seller may assign any of its rights or obligations hereunder to any
affiliate of Seller. Subject to the immediately preceding sentence,
this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
15. Entire Agreement. This Agreement constitute the entire
agreement between the parties hereto relating to the matters covered
hereby The terms of this Agreement shall prevail over any
inconsistent terms contained in any purchase order issued by Buyer
and acknowledgment or acceptance thereof issued by Seller. No
modification, waiver or discharge of this Agreement or any of its
terms shall be binding unless in writing and signed by the party
against which the modification, waiver or discharge is sought to be
enforced. This Agreement is separate from and unrelated to any other
agreement between the parties hereto and has been entered into for
separate and independent consideration, the sufficiency of which is
hereby acknowledged by the parties.
16. Notices. All notices and other communications with respect to
this Agreement shall be in writing and shall be deemed to have been
duly given when delivered personally or when duly deposited in the
mails, first class mail, postage prepaid, to the address set forth
below, or such other address hereafter specified in like manner by
one party to the other:
If to Seller: Caraloe, Inc.
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: President
If to Buyer: Met-Trim
00000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: President
17. Interpretation. In the event that any provision of this
Agreement is illegal, invalid or unenforceable as written but may be
rendered legal, valid and enforceable by limitation thereof, then
such provision shall be deemed to be legal, valid and enforceable to
the maximum extent permitted by applicable law. The illegality,
invalidity or unenforceability in its entirety of any provision
hereof will not affect the legality, validity or enforceability of
the remaining provisions of this Agreement.
18. No Inconsistent Actions. Each party hereto agrees that
it will not voluntarily undertake any action or course of action
inconsistent with the provisions or intent of this Agreement and,
subject to the provisions of Paragraph 8 hereof, will promptly do all
acts and take all measures as may be appropriate to comply with the
terms, conditions and provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their duly authorized officers as of the day and year
first above written.
CARALOE, INC.
By: _____________________________
Name:___________________________
Title:____________________________
MET-TRIM
By:_____________________________
Name:___________________________
Title:____________________________
EXHIBIT A
MANAPOL POWDER PRODUCT SPECIFICATION
Source:
Freeze dried powder produced
from inner gel of Aloe xxxx X.
Processing:
Patented: U.S. and other patents.
Product Specifications:
Appearance Fine white to beige powder
Complex carbohydrates > = 30% of soluble fraction
Moisture < = 14%
Residue on ignition < = 16%
Microbiological purity Meets U.S.P. specifications
Gel Points approximately 240 mg/oz
Viscosity (cP) @ 4 mg/ml approximately 40
Total acid value
(as malic acid) approximately 0.7% by AOAC method
Fiber content (>5 m) < = 60%
EXHIBIT B
Price per Kilogram = $1,400.00
Volume Discount:
Price per kilogram, minimum order of 100 kilograms or more =
$1,300.00 per kilogram
Other discounts available based on minimum quarterly or yearly
commitments to be mutually agreed upon and treated as an attachment
to the Agreement.
