Exhibit 10.10
CONTRACT FOR SERVICES
This Contract for Services (the "Contract") is effective as of April 1,
1998, and is made by and between TOP FORM BRANDS INC., a Colorado corporation
("Top Form") and ORALABS, INC., a Colorado corporation ("OraLabs").
W I T N E S S E T H:
WHEREAS, Top Form is engaged in the business of the wholesale distribution
of pseudoephedrine (the "Product"); and
WHEREAS, Top Form has entered into and is expected to continue to enter
into contracts for the manufacture, packaging and distribution of the Product,
but Top Form does not possess warehouse space or personnel necessary to receive
the product and deliver it for shipment; and
WHEREAS, OraLabs is engaged in the business of manufacture and distribution
of certain health care products and as such has facilities available for taking
receipt of various products and preparing products for shipment, and has
employees skilled in those matters; and
WHEREAS, Top Form desires to receive warehousing and shipping services from
OraLabs and the parties have agreed on the terms thereof as specified in this
instrument.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the adequacy and sufficiency of which is
acknowledged by the parties, the parties agree as follows:
1. Independent Contractor. Top Form hereby retains OraLabs in its capacity
as an independent contractor to perform warehousing and shipping services for
the benefit of Top Form in accordance with the terms of this Contract.
2. Services to be Provided. OraLabs agrees to provide to Top Form, upon
request, the following services (the "Services") to be rendered by the internal
staff of OraLabs:
(i) Receive the Product ordered by Top Form in quantities specified by
Top Form from time to time, provided that in no event may Top Form order
quantities of the Product which would require OraLabs to obtain additional
warehouse space to that being leased by OraLabs as OraLabs may determine from
time to time in its sole discretion;
(ii) Deliver the Product to shipping companies approved by Top Form
from time to time, as specified in written notices from Top Form to OraLabs; and
(iii) Provide Top Form with accounting services related to such
receiving and shipping of Product as requested by Top Form from time to time.
3. Fee for Services. Top Form agrees to pay to OraLabs a fee for its
services in an amount equal to $50 per case of Product (each case containing 144
bottles) received by OraLabs from manufacturers who are delivering the Product
to OraLabs for the benefit of Top Form. OraLabs shall have no obligation to
advance any costs or fees on behalf of Top Form, and all costs of shipment of
the product shall be for the account of Top Form except as may otherwise be
required by the shipping company. To the extent that OraLabs does advance any
out-of-pocket costs on behalf of Top Form, Top Form shall promptly reimburse
OraLabs for such costs upon Top Form receiving a xxxx for such costs from
OraLabs. After the end of each calendar month, OraLabs shall provide a written
invoice to Top Form, specifying the amount of fees and costs (if any) owing with
respect to such calendar month, and Top Form shall pay to OraLabs the amount due
within ten (10) days after Top Form's receipt of the invoice. As additional
consideration for payment of the foregoing fees by Top Form, OraLabs agrees to
release and relinquish to Top Form all rights, if any, which OraLabs has to the
name "Top Form."
4. Original Term. The original term of this Contract shall be one (1) year
from the date first stated above. If not terminated in writing by either party
at least thirty (30) days prior to the end of the original term, then this
Contract shall remain in effect subject to the right of either party to
terminate the Contract upon giving the other party at least thirty (30) days'
written notice of termination of the Contract. Notwithstanding the preceding
sentences of this paragraph, OraLabs shall also have the right to terminate this
Contract at any time prior to the end of the initial one (1) year term, upon
giving written notice of such termination to Top Form at least thirty (30) days
prior to the stated termination date.
5. Limitation of Liability. In providing its Services hereunder, neither
OraLabs nor any officer, director, employee or agent of OraLabs shall be liable
to Top Form for any error of judgment or mistake of law, or for any loss
incurred by Top Form in connection with the matters to which this Contract
relates, except with respect to a loss resulting from wilful misfeasance, bad
faith or gross negligence on the part of OraLabs, its officers, directors,
employees or agents.
6. Indemnification of OraLabs by Top Form. Top Form shall indemnify and
hold harmless OraLabs and its officers, directors, employees and agents from and
against any and all losses, liabilities, claims, damages, costs and expenses
(including attorneys' fees and other expenses of litigation) to which any of
such parties may become subject which arise out of the Services performed by
OraLabs, provided that such indemnity shall not protect any such party against
any matter which arises by reason of wilful misfeasance, bad faith or gross
negligence of such party.
7. OraLabs' Employees. All personnel through whom OraLabs performs any of
its duties under this Contract shall be paid solely by OraLabs and none of such
persons shall be deemed employees or agents of Top Form for any purpose. As an
illustration of the foregoing but not as a limitation thereof, OraLabs shall be
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solely responsible for the payment and withholding of all taxes with respect to
wages arising from OraLabs' provision of the Services.
8. No Partnership. OraLabs and Top Form each have separate and independent
rights and obligations under this Contract. The relationship between the parties
established by this Contract is limited to that of OraLabs serving as an
independent contractor to Top Form. Notwithstanding any other provision of this
Contract, nothing contained in this Contract shall be construed as creating,
forming or constituting any partnership, joint venture, merger or consolidation
of Top Form and OraLabs for any purpose or in any respect. It is expressly
understood and agreed to by the parties that OraLabs shall have no authority to
act for, represent or bind Top Form or any affiliate thereof in any manner
whatsoever, except as may be agreed to expressly by the parties in writing from
time to time.
9. Complete Agreement. This Contract between the parties constitutes the
entire agreement and understanding of the parties hereto, and supersedes any and
all previous agreements and understandings, whether oral or written, between the
parties, with respect to the matters set forth in this Contract.
10. Notices. Any notice or communication permitted or required under this
Contract shall be in writing and shall only be deemed sufficiently given if hand
delivered or sent by United States mail, postage prepaid, certified mail, return
receipt requested, to the address of the party as set forth below, or to such
other address as either party may notify the other in writing:
If to OraLabs: 0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
If to Top Form: c/o Xxxx Xxxxxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Any notice properly given hereunder shall be deemed given when personally
delivered, as evidenced by a written receipt, or one business day after deposit
with the United States Postal Service, if mailed in the manner set forth above.
11. Successors and Assigns. This Contract shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors,
legal representatives and assigns. Notwithstanding the foregoing, neither party
may assign this Contract without the prior written consent of the other party,
which may be withheld in its sole discretion.
12. Amendment and Modification. Neither this Contract nor any provision
hereof may be changed, waived, discharged or terminated other than by an
agreement in writing signed by both parties.
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13. Governing Law. This Contract shall be governed by and construed and
interpreted in accordance with the laws of the State of Colorado, without giving
effect to conflict of law principles.
TOP FORM BRANDS INC.
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, President
ORALABS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, Authorized Director
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