EXHIBIT 10.93
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT (this "Agreement") effective as of December 3,
1998 is by and between CARALOE, INC., a Texas corporation ("Seller"), and
EVENTUS INTERNATIONAL, INC., a Delaware corporation ("Buyer"),
WITNESSETH:
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to
purchase from Seller, Caraloe's Manapol[R] Powder (hereinafter referred
to under the name "Product") 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 3,
1998, and shall end at midnight on December 2, 2005, unless sooner
terminated as provided herein (the "Term").
2. Sale and Purchase. Subject to the terms and conditions of this
Agreement, Seller shall sell to Buyer, and Buyer shall purchase from
Seller, during each year of the Term, agreed upon monthly quantities
equal to all of Buyer's needs for Manapol[R] Powder for the Product.
Seller shall, however, not be required to sell monthly quantities in
excess of Seller's present plant, farm or manufacturing capacity. The
Product specifications shall be mutually agreed upon by the Parties
within ninety (90) days from the date of execution of this Agreement.
Failure to reach agreement on the specifications within ninety (90) days
shall cause this Agreement to terminate unless an extension thereto is
mutually agreed upon by the Parties hereto.
3. Quality. Seller warrants to Buyer that all Manapol[R] Powder
sold by Seller pursuant to this Agreement will generally conform to the
quality specifications set forth in Exhibit A to this Agreement as per
Buyer and Seller mutual agreement referenced above. EXCEPT AS PROVIDED
IN THIS PARAGRAPH 3, 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[R] POWDER TO BE SOLD HEREUNDER, AND NONE SHALL BE
IMPLIED BY LAW.
4. 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[R] Powder to be delivered to it
hereunder, (i) as to the quantities of Manapol[R] 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 an annual basis prior to the beginning of each year of the
Term a nonbinding forecast of Buyer's minimum and maximum aggregate
delivery requirements for Manapol[R] Powder for such year (provided that
such forecast for the second year of the Term shall be provided to Seller
by October 1, 1999), and (b) on a quarterly basis at least thirty (30)
days prior to the end of each three-month period of the Term a forecast
acceptable to Seller (which shall be binding on Buyer) of Buyer's minimum
and maximum delivery requirements for Manapol[R] Powder for each month of
the next three-month period (provided that such forecast for the initial
period of the Term ending on March 31, 1999, shall be provided to Seller
by January 4, 1999). The quantities of Manapol[R] 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[R]
Powder in excess of 125% of the maximum delivery requirement for such
period set forth in the binding forecast for such period accepted by
Seller. Deliveries of Manapol[R] 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[R] Powder delivered to Buyer hereunder shall be packaged per
agreement of the Parties. All deliveries of Manapol[R] Powder to Buyer
hereunder shall be made by Seller F.O.B. at the facilities of Seller or
its affiliates located in Irving, Texas.
5. Purchase Price. All Manapol[R] Powder to be purchased by Buyer
under this Agreement shall be purchased by it, during the first, second
and third years of this Agreement, at a price per Product as set forth on
Exhibit B to this Agreement. Thereafter, Buyer and Seller shall meet on
a yearly basis to mutually agree upon prices for the upcoming contract
year. If prices for the upcoming year cannot be agreed upon the
Agreement shall terminate on December 3 of the contract year in question.
At delivery point, Buyer shall bear all freight, insurance and similar
costs, and all sales taxes, with respect to such purchases from that
point forward. The purchase price of Manapol[R] 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.
6. Labels and Advertising
(a) FDA Compliance of Labels and Advertising. All labels and
advertising relating to the Manapol[R] Powder that reference Xxxxxxxxxx
Laboratories or Seller sold hereunder must strictly comply with all
applicable rules and regulations of the FDA and all other applicable
laws, rules and regulations, including but not limited to FDA
requirements relating to product ingredients.
(b) Claims by Eventus International. Eventus International hereby
agrees not to make, or permit any of its employees, agents or
distributors to make, any claims of any properties or results relating to
Manapol[R] Powder and Caraloe, Inc. or Seller, unless such claims have
received written approval from the Seller.
(c) FDA Approval of Claims. If Eventus International desires to seek
FDA approval as to any specific claims with respect to the Manapol[R]
Powder, Eventus International hereby agrees to (i) notify Caraloe of the
claims and the application prior to filing and (ii) to keep informed as
to the progress of the application, including but not limited to sending
Caraloe copies of all communications or notices to or from the FDA, as
applicable.
(d) Right to Approve Labels, etc. If Caraloe so requests, Eventus
International shall not use any label, advertisement or marketing
material or individual spokesman associated with the Manapol[R] Powder
and Xxxxxxxxxx Laboratories or Seller, unless such label, advertisement
or marketing material or individual spokesman has first been submitted to
and approved by Caraloe. Caraloe shall not unreasonably withhold its
approval of any such label, advertisement or marketing material.
(e) Compliance by Third Parties. Eventus International shall take
all steps reasonably necessary to ensure that its distributors and any
other parties to whom it sells any of the Manapol[R] Powder for resale do
not relabel, repackage, advertise, sell or attempt to sell the Manapol[R]
Powder in a manner that would violate this Agreement if done by Eventus
International.
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[R] 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[R] 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 5 days (in the
case of a failure to make a payment) or 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[R] 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[R] 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 Product, 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 Product. 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 Product. 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 Product, or any
other Product 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 2 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 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 U.S.
Incorporated 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 constitutes the entire
agreement between the parties hereto relating to the matters covered
hereby and supersede any and all prior understandings, whether written or
oral, with respect to such matters. 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.
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: General Manager
If to Buyer: Eventus International, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 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: /s/ Xxxx Xxxx
General Manager
EVENTUS INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
President
EXHIBIT A
EVENTUS INTERNATIONAL, INC.
PRODUCT SPECIFICATIONS
C-200 (Manapol[R] Powder)
PRODUCT DESCRIPTION
PRODUCT: Aloe xxxx Gel C-200
CODE: C-200
SOURCE: Aloe barbadensis Xxxxxx
USES: The pure, stabilized Aloe xxxx Gel Powder is
suitable for use in pharmaceutical and beverage
formulations
SPECIFICATION SHEET
Test Specification Method
Appearance Fine white to beige
powder
Complex > = 30 HPLC(SEC)
Carbohydrates
(wt. %)
Water, wt.% < = 14% TGA
Residue on Ignition < = 16% TGA
wt.%
Microbiological Meets USP Standard USP
Purity
Fiber, wt.% < = 60% TGA
Solubility approx.240 Gel Point CARN
Gelization
pH Not Adjusted CARN
Fiber Enriched CARN
Viscosity (cP) approx. 40 CARN
4 mg/ml solution
Total Acid Value approx. 0.7 CARN
(As Malic Acid)
EXHIBIT B
EVENTUS INTERNATIONAL, INC.
Product Prices
Manapol[R] Powder (Bulk)
1 to 1,200 kg $1,250.00 / kg
1,201 to 3,600 kg $1,225.00 / kg
3,601 to 5,000 kg $1,200.00 / kg
Eventus International guarantees to purchase a minimum of 1,200 kg of
Manapol[R] powder each 12 months of the term of this contract.
Purchases will comply with a forecast provided by Eventus International.
The above pricing is based on annual volume.
Prices F.O.B. Irving, TX.
Terms are Net 30 days with approved credit.
