EXCLUSIVE SUPPLY AND DISTRIBUTION AGREEMENT
THIS EXCLUSIVE SUPPLY AND DISTRIBUTION AGREEMENT, ("Agreement") is
entered into as of this 17th day of March, 2003 by and between Imagenetix,
Inc. a California corporation ("Imagenetix"), whose principal place of
business is 00000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000
and Sanavive Ltd., located at 0000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxx 00000.
WHEREAS, Imagenetix has developed and manufactures proprietary
bioceutical topical cream products (hereinafter the "Product", as defined
below); and
WHEREAS, Sanavive is engaged in the business of marketing and
distributing bioceutical products and desires to market, sell and distribute
the Product;
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
this Section 1 shall have the meanings indicated below:
1.1 "Product" shall mean the uniquely efficacious, proprietary topical
creams developed and produced by Imagenetix. Sanavive will market
under the Nature's Healthy Essentials brand and all other brand
names it may sell on an OEM basis.
1.2 "Licensed Territory" shall be worldwide
2. Supply and Sale. Imagenetix shall supply and sell to Sanavive pursuant to
the terms and conditions described herein.
2.1 Exclusive Supplier. During the term of this Agreement and any
renewals hereof, Imagenetix will be the exclusive supplier to
Sanavive for the purpose of having the rights to sell the "Product"
or product derivative in any channel of distribution.
2.2 Distributor. During the term of this Agreement, Sanavive shall be
a distributor of Product in the Licensed Territory.
3. Price. Prices and applicable discounts for the "Product" ordered
hereunder shall be in accordance with this Agreement.
3.1 The Products purchased hereunder are purchased for resale,
therefore, the prices specified herein are exclusive of sales, use or
similar taxes. Price per topical cream product are attached as
Schedule A.
3.2 Any and all taxes, excises, assessments, levies, imports, duties,
costs, transportation 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.
4. Record Keeping.
4.1 Imagenetix shall keep all records relating the manufacturing of
Product for a minimum of seven (7) years.
4.2 Imagenetix shall maintain retained 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 Products lots produced by Imagenetix for
Sanavive 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 Product for a
period of seven (7) years.
4.5 Notification. Imagenetix agrees to notify Sanavive within thirty
(30) calendar days of Imagenetix's recognition of any problem,
anomaly, defect or condition (planned or unplanned) that would
reasonably cause Sanavive concern relative to instability,
interchangeability, availability, reliability, maintainability,
form, fit, function, or quality of the Product.
4.6 Formula Physical Stability. Imagenetix is fully responsible for
any formula 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.
5. Term and Renewal. This Agreement shall commence upon the date first
written above and shall continue for five (5) years thereafter, unless sooner
terminated pursuant to the provision herein. This Agreement may be
automatically renewed for additional terms of two (2) five (5) year terms
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
renewal period.
6. Indemnity.
6.1 Against Product Liability. Imagenetix agrees to indemnify and
hold Sanavive and its affiliates harmless against any and all
claims, losses, damages, injuries, liabilities or expense,
including reasonable attorneys fees and costs of investigation
and suit to defend such claims, arising out of any allegation,
claim or assertion by a governmental agency or any third party
that any of the Products resold by Sanavive is adulterated,
misbranded, unsafe or otherwise constitutes Defective Product. The
foregoing indemnity shall include, without limiting its
generality, losses, damages, liabilities and expenses arising out
of governmental agency recall of Defective Product, and the
consequential damages proximately caused thereby, such as loss of
business, profits, and reputation and refunds which Sanavive is
obligated to make to its customers as a consequence thereof.
Sanavive agrees to give Imagenetix prompt notice of any and all
claims made against it in connection with allegedly Defective
Product, and to cooperate with Imagenetix in defending against
such claims. The foregoing warranty and indemnification shall be
binding upon Imagenetix and its successors and shall inure to the
benefit of Sanavive and it successors in connection with Product
delivered pursuant to this Agreement.
6.2 Delivery and Acceptance. Sanavive's acceptance of product is
based on reasonable acceptance criteria, providing that Sanavive's
acceptance is not based beyond product specification. Unless
notified in twenty (20) days, the Product shall be deemed
accepted.
7. Confidential Information.
7.1 Confidential Information, as used herein, means any and all plans,
data, inventions, products, machines, improvements, designs,
discoveries, know-know, concepts, methods, algorithms, programs,
trade secrets, processes, formulas, techniques, data, supplier
lists, distributor lists, genealogies, customer lists, phone logs,
marketing and business plans, financial information (including but
not limited to information, whether actual, estimated or
projected), technical or scientific and all other work products or
proprietary information of any kind or nature, whether patentable
or copyrightable or not, pertaining to the other party, its
business or its products, which are not found in the public
domain; and includes any and all records, reports, manuals,
drawings, schematics, diskettes, notes, memoranda, print-outs,
graphs, writings of any kind or nature, tape films and either
electronic, visual or audio recordings of any kind or nature
containing in whole or in part Confidential Information, whether
originals or copies.
7.2 Imagenetix and Sanavive hereby agree not to disclose Confidential
Information to any person(s) or entity, except to employees or
agents who require the same for purposes of the manufacture of the
Products.
8. Termination. In addition to the other provisions contained elsewhere in
this Agreement, this Agreement may be terminated on occurrence of any of
the following events, and in the following manner:
8.1 By the non-breaching party at any time if the other party has
breached a material provision contained in this Agreement and has
not cured the breach within thirty (30) days of receipt of written
notice thereof.
9. Imagenetix Warranties.
9.1 Imagenetix warrants that all units of the Product sold and
delivered to Sanavive are safe and efficacious when taken in the
recommended dosages.
9.2 Imagenetix warrants that all units of the Product sold and
delivered to Sanavive shall, as of the date of delivery to
Sanavive, not be misbranded within the meaning of any laws or
regulations.
9.3 Imagenetix warrants that all Products sold and delivered to
Sanavive shall be free from adulteration, impurities, defects or
any other material unsafe for human consumption.
9.4 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.
9.5 Imagenetix authorizes Sanavive to utilize its clinical and medical
research as it relates to all products Sanavive purchases from
Imagenetix. Imagenetix will provide full cooperation in assisting
Sanavive in developing consumer advertising by providing Sanavive
with suggested marketing, scientific and medical support
material..
10. Insurance. Imagenetix agrees to carry product and contractual liability
insurance for Sanavive benefit, at Imagenetix's expense, with liability limits
of $1,000,000.00 aggregate and $1,000,000.00 per incident, to name Sanavive as
an additional insured on all such policies and to deliver to Sanavive evidence
of such insurance and of Imagenetix's compliance with the provisions of this
section promptly following the execution hereof and upon each annual renewal
hereof.
11. General Provisions.
11.1 Complete Agreement. This Agreement shall become binding on the
parties when signed by authorized representatives of the parties, and
shall 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 office of the party against whom the same is ought to be
enforced. This Agreement shall not be modified or altered by and subsequent
course of performance between parties.
11.2 Governing Contract. The terms and conditions herein shall govern
all purchase orders placed there under, and shall override all
printed terms and conditions contained on the purchase order or
acknowledgment form issued by either Sanavive or Imagenetix.
11.3 Notices. Any notices required to be given under the terms of
this 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.
11.4 Enforceability. If any provision(s) of this Agreement shall be
held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
11.5 Governing Law. This Agreement shall be deemed to have been
entered into in the state of California, and shall be construed in
accordance with California law.
IN WITNESS WHEREOF, the parties hereto execute this Agreement as
of the date first above written.
IMAGENETIX, INC. SANAVIVE LTD.
/s/Xxxxxxx X. Xxxxxxx /s/Xxxx X. Xxxxx
By: Xxxxxxx X. Xxxxxxx By: Xxxx X. Xxxxx
Its: President Its: Authorized Representative
