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LICENSE AND SUPPLY AGREEMENT This License and Supply Agreement Agreement by forsythe

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									                           LICENSE AND SUPPLY AGREEMENT

       This License and Supply Agreement ("Agreement") is entered into as of _____________,
("Effective Date"), between Nutratech, Inc., a New Jersey corporation having a place of business
at 10 Henderson Drive, West Caldwell, New Jersey 07006 ("Licensor"), and ________________,
a corporation having a place of business at __________________________________
("Licensee").

WHEREAS, Licensor is the exclusive worldwide licensee of United States Patent Nos.
6,224,873, 6,316,499, 6,340,481 and 6,340,482 and other related United States and foreign
patents applied for (collectively, the "Licensed Patent”);

WHEREAS, Licensee desires to manufacture finished product(s) on behalf of and for distribution
by one or more third parties that contain citrus aurantium extract product, bitter orange extract,
orange peel extract, zhishi extract, citrus extract, and/or synephrine from immature orange peel
(collectively the "Licensed Product") obtained exclusively from Licensor, which finished
product(s) are identified in Schedule 1 attached to this Agreement and which finished product(s)
may change from time to time ("Finished Products"); and

WHEREAS, Licensor is willing to grant Licensee the non-exclusive right and license to use the
Licensed Patent in connection with Finished Products containing Licensed Product exclusively
purchased from Licensor.

NOW THEREFORE, in consideration of good and valuable consideration, the receipt of which is
hereby acknowledged, including the mutual covenants herein expressed, the parties agree as
follows:

   1. GRANT OF LICENSE - Licensor grants to Licensee, and Licensee accepts, a non-
      exclusive, non-transferable, royalty-free sub-license under the Licensed Patent solely for
      use in connection with the manufacture of Finished Products on behalf of and for
      distribution by one or more third parties, which third parties may change from time to
      time, containing the Licensed Product purchased exclusively from Licensor pursuant to
      this Agreement. The purchase price per unit of the Licensed Product is set forth in
      Schedule 2 attached hereto.

    2. INSURANCE - Before selling or shipping any Finished Products, Licensee shall obtain,
       from a reputable insurance carrier acceptable to Licensor, liability insurance in the
       minimum amount of $2,000,000 (U.S.) (combined single limit) in order to protect and
       insure Licensor and Licensee against any claims or liabilities with which it or they may be
       charged because of personal or property damage or injuries suffered by any person or
       entity, resulting from the Finished Products or the use or sale thereof (except to the extent
       caused by the Licensed Product), whether during the term of this Agreement or thereafter.
       Licensor shall be named in the policy of such insurance as a named additional insured,
       and such policy shall provide that the insurance cannot be canceled without the insurer
       giving Licensor written notice thereof at least thirty (30) days prior to the effective date of
       the cancellation. Within ten (10) days after the date this Agreement is executed and on


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       the first day of each year thereafter, Licensee shall deliver to Licensor a certificate of
       insurance evidencing that such insurance is in full force and effect and that it cannot be
       canceled without the insurer giving Licensor written notice thereof at least thirty (30)
       days prior to the effective date of the cancellation. The insurance described herein is
       understood to be primary, and is not subject to contribution by any other insurance which
       may be available to Licensor.

   3. PRODUCT INFORMATION AND MATERIALS - Licensor may provide Licensee, in
      Licensor's sole discretion, information and materials relating to the Licensed Product,
      whether proprietary or non-proprietary, whether written, recorded or verbal, whether on,
      prior or subsequent to the date of this Agreement, whether prepared by Licensor or by a
      third party, including, but not limited to, all Licensed Product sales and marketing
      materials, research data and other technical information (collectively, "Information"). All
      such Information is provided "As Is With All Faults", and Licensor makes, and will
      make, no representations or warranties, express or implied, as to the usefulness, accuracy,
      completeness, feasibility, reliability or legality of the Information, except that Licensor
      represents that the Information has been or will be provided to Licensee in good faith.
      Licensee may use the Information provided by Licensor solely in connection with the
      manufacturing and distribution of Finished Products that contain Licensed Product
      purchased from the Licensor; provided that Licensee will maintain any Information
      designated in writing as being proprietary and confidential to the Licensor and shall not
      disclose such Information to any third party, except as may be required by applicable law.
      Notwithstanding anything contained herein to the contrary, Information shall be deemed
      to not include any of the following information:

       (a)    any information which is or becomes generally available to or generally known by
              the public or the trade;

       (b)    any information which was, at the time of disclosure hereunder, already known by
              or in the possession of Licensee or any of its directors, officers, employees,
              affiliates, agents, consultants or representatives (collectively, the
              “Representatives”);

       (c)    any information which corresponds in substance to any information received in
              good faith by Licensee or any of its Representatives from a third party having the
              legal right to make such a disclosure; or

       (d)    any information which is developed by Licensee or any of its Representatives
              independently of disclosure hereunder.

   4. UNDERTAKINGS BY LICENSEE.

       (a)    Product Changes - Upon written notice to Licensor by Licensee, Licensee may,
              upon Licensor's written approval (which approval shall not be unreasonably
              withheld or delayed), amend, add to, subtract from or otherwise change, from time
              to time, the list of Finished Products identified in Schedule 1 attached hereto,



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             provided that all such changes and Finished Products shall comply with the terms
             and conditions of this Agreement;

       (b)   Product Quality - Licensee shall (i) not blend nor formulate the Licensed Product
             or Finished Products with any other citrus aurantium extract powder material
             other than the Licensed Product obtained from the Licensor, and (ii) not sell any
             Finished Products that are not manufactured in accordance with the requirements
             of the United States Federal Food Drug and Cosmetic Act, including all
             applicable good manufacturing practice regulations, or in the event Finished
             Products are manufactured or distributed in countries outside the United States, in
             accordance with all applicable laws and regulations of such countries;

       (c)   Product Supply – Licensee agrees to purchase the Licensed Product only from
             Licensor. Licensee agrees that it will not resell or supply any Licensed Product in
             bulk raw material form;

       (d)   Compliance With Laws - Licensee will comply with all laws and regulations
             relating or pertaining to the marketing of Finished Products;

       (e)   Expenses – Except as set forth in this Agreement, Licensee will not create any
             expenses chargeable to Licensor;

       (f)   Indemnification - Except as expressly provided herein, Licensee indemnifies and
             holds Licensor harmless from any claims arising out of any act under or in
             violation of this Agreement by Licensee and Licensee’s distributors of Finished
             Products, including, but not limited to, the distribution, advertising and promotion
             of Licensee's Finished Products or use of the Information;

       (g)   Auditing Right - Licensee agrees to keep complete and accurate written records in
             sufficient detail to enable the Licensor and/or its representatives and agents to
             determine on a monthly basis the gross sales and quantity of all Licensed Product
             used and Finished Products sold by Licensee. Licensee agrees to permit the
             aforesaid records to be examined at the Licensor's sole expense by any
             independent auditor at yearly intervals during normal business hours upon five (5)
             business days’ notice. Licensee agrees to provide the Licensor and/or its
             independent auditor with full cooperation in making available all records
             reasonably necessary to conduct the inspection and examination pursuant to this
             provision. Should any inspection or examination reveal greater than a five percent
             (5%) deficiency in the difference between the quantity of Licensed Product used
             by Licensee in Finished Product and the quantity of Licensed Product purchased
             from Licensor, then Licensor shall have the right to terminate this Agreement and
             all rights granted to Licensee pursuant to this Agreement upon thirty (30) days’
             written notice to Licensee. As to any such deficiency, Licensee shall immediately
             pay Licensor the purchase price for the amount of the deficiency based upon the
             purchase price identified in Schedule 2;




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        (h)    No Sponsorship or Endorsement - Licensee shall not, directly or indirectly, hold
               Licensor out as a sponsor or endorser of Licensee's business or suggest or imply
               any connection or relationship between Licensee and Licensor in any manner
               whatsoever, except as set forth in this Agreement; and

        (i)    Patent Disclosure - Licensee shall use its best efforts to prominently mark all
               packaging, labels and advertising materials for the Finished Products with the
               designation "U.S. Patent Nos. 6,224,873, 6,316,499, 6,340,481 and 6,340,482".

     5. TERM AND TERMINATION - This Agreement shall commence on the Effective Date
        and shall continue in full force and effect, unless and until terminated as follows:

        (a)    Except to the extent a party is in breach of this Agreement, this Agreement may be
               terminated by either party for any reason without cause upon one hundred twenty
               (120) days’ written notice to the other party;

        (b)    Licensor or Licensee, as the case may be, shall have the right to terminate this
               Agreement immediately upon written notice to the other party if Licensor or
               Licensee, as the case may be, shall fail to comply with or perform any term or
               condition of this Agreement and if such failure shall continue for a period of thirty
               (30) days after written notice of such failure is sent by the other party to Licensor
               or Licensee, as the case may be;

        (c)    This Agreement shall terminate automatically if either Licensor or Licensee, as
               the case may be, files a petition in bankruptcy, is adjudicated as bankrupt or files a
               petition or otherwise seeks relief under or pursuant to any bankruptcy, insolvency
               or reorganization statute or proceeding, or if a petition in bankruptcy is filed
               against it or it becomes insolvent or makes an assignment for the benefit of its
               creditors, or a custodian, receiver or trustee is appointed for all or a substantial
               portion of Licensor’s or Licensee’s (as the case may be) business or assets,
               provided such circumstances are not cured within sixty (60) days of the
               commencement of the above-stated event; and

        (d) This Agreement shall terminate immediately without notice upon the invalidation or
            expiration of the Licensed Patent.

6.      POST TERMINATION RIGHTS - Except as otherwise provided herein, upon
        termination of this Agreement for any reason (i) Licensee shall immediately discontinue
all use of the Information and (ii) all rights granted by the Licensor to Licensee pursuant to this
Agreement including all rights under the Licensed Patent, whether explicit or implicit, shall
terminate. Notwithstanding anything contained herein to the contrary, Licensee shall have the
right to (i) use any Licensed Product held in inventory and manufacture Finished Products that
may be manufactured from such Licensed Product and (ii) sell its existing inventory of Finished
Products.




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   7. REMEDIES

       (a)   In addition to any monetary damages which may be awarded as a result of a
             breach of this Agreement by Licensor or Licensee, as the case may be, Licensor or
             Licensee, as the case may be, shall be entitled to seek injunctive relief. Each of
             Licensor and Licensee acknowledges that a remedy at law for any breach or
             threatened breach of this Agreement may be inadequate, and that accordingly,
             Licensor or Licensee, as the case may be, shall be entitled to seek injunctive relief
             in addition to any other remedy it may have. Neither Licensor's or Licensee’s (as
             the case may be) right to seek injunctive relief nor any other provision of this
             Agreement shall be construed as prohibiting Licensor or Licensee, as the case may
             be, from pursuing any other legal or equitable remedy available to it for such
             breach or threatened breach, including the recovery of monetary damages and
             attorneys’ fees; and

       (b)   This Agreement shall be governed by and interpreted in accordance with the laws
             of the State of New Jersey without regard to conflicts of law principles and any
             proceedings pertaining to this Agreement shall be commenced and maintained in
             New Jersey. Each of the parties hereto in any suit, action or proceeding arising
             out of or relating to this Agreement, irrevocably (i) submits to the jurisdiction of
             the State Courts of the State of New Jersey and, if jurisdiction can be acquired, the
             United States District Court located in New Jersey over any suit, action or
             proceeding arising out of or relating to this Agreement, (ii) waives to the fullest
             extent enforceable under applicable law any objection which it may now or
             hereafter have to the above venue of any such suit, action or proceeding and any
             claim that any such suit, action or proceeding brought in such Court has been
             brought in an inconvenient forum and (iii) acknowledges that a final judgment in
             any such suit, action or proceeding brought in such Court, after all available
             appeals have been exhausted, shall be conclusive and binding upon it.

   8. INDEMNIFICATION.

       (a)   Licensor using counsel of Licensor's choice (which shall be reasonably acceptable
             to Licensee), agrees to indemnify, hold harmless and defend Licensee from and
             against all losses, liabilities, claims, expenses and/or damages which Licensee
             may incur solely in connection with (i) any breach by Licensor of any of
             Licensor's representations or covenants under this Agreement, or (ii) any claim or
             alleged claim of patent infringement in connection with the authorized use, sale,
             marketing or distribution of the Licensed Product by Licensor or its distributors or
             end users pursuant to the terms of this Agreement, provided however, that the
             preceding provisions shall have no application and shall have no force and effect
             in the event (i) the Finished Products sold by Licensee include one or more other
             ingredients other than the Licensed Product (collectively "Other Ingredients"), in
             which case, Licensee shall indemnify, hold harmless and defend Licensor from
             such losses, liabilities, claims, expenses and/or damages arising out of the use of
             such Other Ingredients, or (ii) the failure of Licensee to promptly notify Licensor


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             in writing of any claim which may be made against Licensee arising out of the use
             of the Licensed Product, the Licensed Patent or the Information, to the extent the
             Licensor is irreparably prejudiced by such delay, or (iii) of any act in violation of
             this Agreement by Licensee and/or any of its Representatives; and

       (b)   If it becomes necessary to defend any such claim pursuant to this Section 8, the
             indemnifying party will undertake the defense at its own expense using counsel of
             the indemnifying party's choice (which counsel shall be reasonably acceptable to
             the indemnified party) (although the indemnified party may elect to participate in
             such defense through counsel of its own choice, the cost of which shall be borne
             by the indemnified party).

   9. GENERAL PROVISIONS.
       (a)   Assignment - This Agreement is personal to Licensee. Licensee shall not assign
             or transfer any rights or obligations under this Agreement;
       (b)   Assignment by Licensor - This Agreement shall inure to the benefit of and be
             binding upon the Licensor and its successors and assigns;
       (c)   Relationship - The relationship of the parties to this Agreement is determined
             solely by the provisions of this Agreement. The parties do not intend to create any
             agency, partnership, joint venture, trust or other relationship with duties or
             incidents different from those of parties to an arm's length contract;
       (d)   Integration - This Agreement sets forth the entire understanding of the parties
             relating to the transactions contemplated herein, and supersedes all prior
             understanding relating to them, whether written or oral. There are no obligations,
             commitments, representations or warranties relating to the transactions
             contemplated herein, except those expressly set forth in this Agreement;
       (e)   Attorney's Fees - If any action is necessary to enforce the terms of this Agreement,
             the prevailing party shall be entitled to reasonable attorneys' fees in addition to
             any other relief to which it may be entitled;
       (f)   Severability - Should all or any portion of any provision of this Agreement be held
             unenforceable or invalid for any reason, the remaining portions or provisions shall
             be unaffected;
       (g)   Waiver/Modification/Amendment - No amendment or supplement to or waiver of
             any obligations under this Agreement will be enforceable unless set forth in a
             writing signed by the party against which enforcement or admission is sought. No
             delay or failure to require performance of any provision of this Agreement shall
             constitute a waiver of that provision as to that or any other instance. Any waiver
             granted shall apply solely to the specific instance expressly stated; and
       (h)   Counterparts – This Agreement may be executed in counterparts, each of which
             shall be deemed an original and all of which, when taken together, shall constitute
             one and the same agreement.




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        IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.

LICENSEE (___________________)

By:___________________________
  Name:
  Title:

LICENSOR (NUTRATECH, INC.)

By:__________________________
  Name:
  Title:




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             SCHEDULE 1

            Finished Products




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                SCHEDULE 2

            Purchase Price Per Unit
             of Licensed Products




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