EXHIBIT 10.5
DISTRIBUTION AND LICENSE AGREEMENT
BETWEEN: NUTRI-DIEM INC., a company duly incorporated under the laws of the
Quebec companies Act, part 1A, having its registered office and
principal place of business at 1421, Nobel Street, in the City of
Sainte-Julie, Province of Quebec, J3E 1Z4, herein acting and
represented by Michel Grise, its President and Louise Desmarais its
secretary duly authorized for purposes hereof, as they so declare;
(hereinafter referred to as the "LICENSOR")
AND: ESSENTIALLY YOURS INDUSTRIES, INC., a company duly incorporated
under the laws of the State of Nevada, having its registered office
and principal place of business at 3753-Howard Hughes Parkway, suite
200, in the City of Las Vegas, Nevada, 89145, herein acting and
represented by Jay Sargeant, its President and Barry LaRose, its
Secretary duly authorized for purposes hereof, as they so declare;
(hereinafter referred to as the "LICENSEE")
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RECITALS
WHEREAS the Licensor has obtained from Michel Grise Consultant Inc. (hereinafter
the "OWNER") the exclusive rights to manufacture and market the products more
particularly identified in Schedule "A" of this Agreement (hereinafter the
"PRODUCTS") under the trademarks more particularly identified in Schedule "B" of
this Agreement (hereinafter the "TRADEMARKS");
WHEREAS the Trademarks and all other intellectual property rights relating to
the Products are owned by the Owner;
WHEREAS the Licensee wishes to acquire the exclusive license and right to
market, sell and distribute the Products in the countries of Canada and the
United States (the "TERRITORY") under the Trademarks and the non-exclusive
license to market, sell and distribute the Products on the Internet (the license
for the Territory and for the Internet are hereinafter called the "LICENSE");
WHEREAS the Licensor is prepared to grant such license and rights upon the terms
and conditions herein set out, subject to certain limitations imposed by the
Owner.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. GRANT OF LICENSE
1.1. The Licensor hereby grants to the Licensee the exclusive license and
the right to market, sell and distribute the Products in the
Territory, as they are provided by the Licensor and the right to use
the Trademarks solely in connection with the
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sale, marketing and distribution of the Products in the Territory.
The Licensee shall not be authorized to use any other trademarks in
connection with the sale, marketing and distribution of the Products
unless prior approval is received from the Licensor. The Licensor
also hereby grants to the License a non-exclusive license to market,
sell and distribute the Products on the Internet;
1.2. The Licensee acknowledges that the Licensor will have the right to
sell, market and distribute products other than the Products, in the
Territory as long as those products are not similar or competitive
to the Products.
1.3. No other right or license is granted by the Licensor to the
Licensee, either express or implied, with respect to any other
trademark, trade name, service mark, or other intellectual property
right owned or possessed by, or licensed to the Licensor or in
connection with the sale and marketing of the Products. The Licensee
shall not use the Trademarks in any manner not specifically
authorized by this Agreement.
1.4. Nothing in this Agreement is intended by the parties to constitute
the Licensee as an agent, legal representative, subsidiary, joint
venture or partner of the Licensor for any purpose whatsoever. The
Licensee shall be at all times an independent contractor and this
Agreement shall not entitle the Licensee to make any contract,
warranty or representation, or to create any obligation, express or
implied, on behalf of the Licensor.
1.5. This License granted hereby allows the Licensee to sell the Products
in the Territory using any program or system reasonable as long as
said program or system is consisted with good business ethics and
reflects favourably on the Trademarks and the goodwill of the
Licensor and its products.
1.6. This License is granted for the Territory only. The Licensee will
not knowingly sell Products to persons or entities who resell or
export same outside the Territory.
1.7. This Agreement is conditional upon Jay Sargeant being the
shareholder of the Licensee as at the date and time that it becomes
effective and can be terminated by the Licensor if such condition is
not met.
2. OTHER COUNTRIES
2.1. The parties agree that for the countries other than those located in
the Territory, the following rules shall prevail:
2.1.1. Subject to the terms and conditions of any license granted
by the Licensor, the Licensor shall have the right to sell,
market and distribute the Products under the Trademarks or
under any other trademark, in any country outside the
Territory, and shall also have the right to sell any other
products, similar or not and competitive or not, to the
Products, in any country outside the Territory.
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2.1.2. Before being able to grant to a third party a license to
sale of Products under the Trademarks for a country or
territory outside the Territory, the Licensor shall first
offer to the Licensee the license for said country or
territory, at the same conditions, including the minimum
purchase requirements, as those proposed or accepted by the
third party. The Licensee shall then have a period of sixty
(60) days to accept the offer and become the licensee for
said country or territory. If the Licensee does not accept
the offer within the sixty (60) day period the Licensor
shall then have the right to grant said license to the third
party on terms that are not materially different from those
offered to the Licensee. In the event that the terms are
materially different then the offer must again be made to
the Licensee on the terms set out herein and so on from time
to time. In the event that the procedure set herein is
followed and a license is granted to a third party then and
in such a case, the License undertakes to respect any such
license granted to any third party.
3. TERM
3.1. This Agreement is entered into on June 30th, 2002 at 3 PM P.D.T. and
shall continue for a period of five (5) years thereafter, subject to
the right of renewal herein set out and subject to earlier
termination in accordance with the provisions hereof.
3.2. Provided that the Licensee is not in default pursuant to the
Agreement, the terms of this Agreement shall be automatically
renewed for a five (5) year period. Upon such renewal, the Licensee
shall insure that it is in good standing under this Agreement.
4. PRICES
4.1. The Licensee shall pay the Licensor the prices for the Products set
forth in Schedule A attached hereto and incorporated herein by this
reference, together with any shipping and handling costs for the
Products ordered. Any increase in prices shall require a prior
written notice of at least ninety (90) days to the Licensee and such
increase shall only be permitted to the extent that actual costs of
the Licensor have risen. The prices listed in Schedule A are FOB
Licensor's designated warehouse, in Ste-Julie, Quebec or elsewhere
in Canada or the United States as the Licensor may, from time to
time, designate.
5. MARKETING EFFORTS
5.1. The Licensee shall use its best commercial efforts at all times to
successfully market, promote, distribute and sell the Products
throughout the Territory in a manner that is consistent with good
business ethics and that reflects favourably on the Trademarks and
the goodwill of the Licensor. The Licensee shall use its best
efforts to procure the greatest volume of sales for the Products
consistent with
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high quality standards and shall make and maintain adequate
arrangements for the distribution, advertising and promotion of the
Products.
5.2. In order to maintain this License the Licensee shall be required to
purchase a minimum amount of Products (the "MINIMUM AMOUNT") each
year during the term of this Agreement. For the purposes of this
calculation all products purchased from the Licensor by the Licensee
shall be included in such calculation even if such products are not
set out in Schedule A attached. The minimum amount shall be:
5.2.1. For the year from June 1, 2002 to May 31, 2003 the
minimum amount of three million dollars ($3,000,000.00);
5.2.2. For the year from June 1, 2003 to May 31, 2004 the
minimum amount of seven million dollars ($7,000,000.00);
5.2.3. For the year from June 1, 2004 to May 31, 2005 the
minimum amount of twenty million dollars ($20,000,000.00);
5.2.4. For each year thereafter during the term of this
agreement the minimum amount of fifty million dollars
($50,000,000.00);
In the event that the Licensee fails to purchase the minimum amount
in any year, then the Licensee shall have the option, to be
exercised within thirty (30) days of the end of the year in which
the minimum amount was not purchased, to compensate the Licensor for
the loss of profit by paying to the Licensor, within said delay of
thirty (30) days, an amount equal to fifteen percent (15%) of the
difference between the minimum amount for the year and the real
purchase amount for the year (the "COMPENSATION"). Notwithstanding
the foregoing, if after the first six (6) months of any given year,
the Licensee fails to purchase at least twenty-five percent (25%) of
the minimum amount for that year (the "EARLY MINIMUM AMOUNT") then
the Licensor shall have the right to send a notice to the Licensee
asking for early compensation. In such a case, the Licensee shall
have thirty (30) days from the receipt of said notice to pay a
compensation equal to fifteen percent (15%) of the difference
between fifty percent (50%) of the minimum amount for that year and
the real purchase amount for the first six (6) months of that year
(the "EARLY COMPENSATION"). It is understood, for any given year,
that if an adjustment needs to be made to the amount of the
Compensation in light of the Early Compensation, paid then such
adjustment shall be made at the end of the year.
5.3. In the event that Licensee fails to purchase the minimum amount in
any year and it does not pay the Compensation in the prescribed
delay or if the Licensee fails to purchase the Early minimum amount
in any year and it does not pay the Early Compensation in the
prescribed delay, as the case may be, then the Licensor shall have
the option, at the sole discretion of the Licensor to be exercised
within ninety (90) days of the end of the year in which the minimum
amount was not
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purchased, to: (1) terminate this Agreement, upon thirty (30) days
notice; or (2) to make this Agreement non-exclusive permitting the
Licensee to continue to market, sell and distribute the Products in
the Territory, or to restrict the exclusivity of this License to
certain countries within the Territory and make it non-exclusive in
others; or (3) to require the Licensee to renegotiate the License
granted herein. Purchases of Products in excess of minimum amounts
shall be applied against minimum amounts for future periods. To that
effect, the Licensee acknowledges that the minimum amounts were and
are essential elements for the Licensor in the present Agreement,
without which the Licensor would not have signed this Agreement. The
Licensor therefore acknowledges that the Licensor shall have the
absolute right to terminate the present Agreement should the
Licensee fail to purchase the minimum amount for any year and not
pay the Compensation for that year.
6. NEW PRODUCTS
6.1. The Licensor will offer in writing to the Licensee the right to
distribute, in the Territory and in any other country or territory
for which a licence has been granted to the Licensee, any new
product developed by the Licensor.
6.2. If the Licensee wishes to distribute such new product, it shall then
confirm its acceptance in writing to the Licensor together with a
proposal of minimum purchase amounts for said product.
6.3. If the Licensee fails or omits to send his acceptance to the
Licensor within sixty (60) days of receipt of the offer from the
Licensor or if the minimum purchase confirmation is not reasonable
in the opinion of the Licensor, acting reasonably in the
circumstances, then the Licensor shall have the right to grant a
licence to any third party for the sale, market and distribution of
such product provided that such terms are materially of greater
benefit to Licensor than those proposed by Licensee and if not then
Licensee shall be given the license for such new product in that
country or territory.
7. USE OF NAME AND TRADEMARKS
7.1. During the Terms of this Agreement, the Licensee is granted the
right to use, with appropriate trade or service mark protective
notation, Trademarks for the sale, distribution and marketing of the
Products and in the matter permitted by this Agreement. Upon
termination of this Agreement all such rights to the use of the
Trademarks for the sale, distribution and marketing of the Products
shall cease and terminate, and all rights shall revert to the
Licensor. The Licensee shall take all appropriate steps to protect
the rights of the Licensor in the Trademarks and shall fully
cooperate therein. The Licensee agrees that it will not during the
term of this Agreement or at any time thereafter, directly or
indirectly, assert any interest or property rights in the
Trademarks. The Licensee acknowledges the validity of the Licensor's
rights to the Trademarks and agrees that it will not nor will it
assist any other person to attack, challenge or contest said rights
or title.
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The Licensee agrees to pay to the Licensor the sum of one dollar
($1.00) per year for the right to use described herein, such payment
to be made as of the date of this Agreement and on the anniversary
date of this Agreement in each calendar year thereafter.
7.2. The Licensor will defend any suit or proceedings brought against the
Licensee insofar as such suit is based on a claim that the Products,
or any part thereof, constitute an infringement of any patent or
other proprietary right. The Licensee shall notify the Licensor
promptly in writing, of any such suit, action or threat thereof and
the Licensor shall have full and complete authority for the defence
and settlement of same. The Licensor shall pay all damages and costs
awarded against the Licensee which are attributable to such claims
but the Licensor shall not be responsible for damages or costs under
any compromise made without its consent. In the event that a Product
or any part thereof, in such suit or negotiated settlement or
compromise, is held to constitute infringement and the use of such
Product or part thereof is prohibited the Licensor at its own
election and own expense will:
7.2.1. Modify or replace such Product, or part thereof, so that
it becomes non-infringing; or
7.2.2. Arrange for the Licensee to obtain a refund of monies paid
for such Product which is no longer saleable, provided that
if a refund is not paid to the Licensee within a reasonable
time and in any event no later than ninety (90) days after
same becomes payable, then the Licensor shall become liable
to the Licensee for payment of the refund;
However, the Licensor shall not be liable to the Licensee for any
infringement or claim based upon the use of Products for which the
Products were not intended. This article states the entire liability
of the Licensor with respect to infringement.
7.3. The Licensee shall not modify the Products provided by Licensor
for resale by Licensee.
7.4. The Licensee agrees that all advertising and promotion for the
Products shall meet the highest standard of quality and shall bear
the faithfully produced Trademarks.
7.5. The Licensee undertakes not to challenge the ownership or
registration of the Trademarks, nor to attempt to register the
Trademarks anywhere in the world.
8. COVENANTS OF THE LICENSEE
8.1. In addition to its covenants, acknowledgments and agreements
otherwise set out herein, the Licensee represents and warrants:
8.1.1. This Agreement constitutes a valid and binding obligation
of the Licensee;
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8.1.2. That it has full power and authority to enter into this
Agreement and that it will not constitute a breach or
default under any other agreement or obligation of the
Licensee;
8.1.3. To protect, indemnify and hold harmless the Licensor from
all costs, damages, expenses, (including reasonable legal
fees), claims and other liabilities imposed by law as a
result of a breach by the Licensee of any material terms of
this Agreement;
8.1.4. The Licensee represents, warrants and covenants to the
Licensor that it has and shall at all times during the term
of this Agreement maintain, at its sole cost and expense,
standard Product Liability and Advertiser's Liability
Insurance naming the Licensor, its officers, directors,
agents, and employees, as additionally insured parties in
the amount of one million U.S. dollars ($1,000,000.00 USD)
by an insurance company approved of by the Licensor, which
approval shall not be unreasonably withheld;
8.1.5. The Licensee shall at all times maintain a sufficient stock
of Products to ensure prompt and timely supply for all
reasonable demands of customers requirements.
8.1.6. The Licensee has represented to the Licensor that the
Licensee shall obtain before December 31st 2002 a financing
of three million dollars ($3,000,000.00) or more. The
Licensee acknowledges that this financing was and is an
essential element for the Licensor in the present Agreement
without which the Licensor would not have signed this
Agreement. Therefore should the financing not be obtained
within said period, the Licensor shall have the same options
as outlined in Article 5.3 herein.
9. COVENANTS OF THE LICENSOR
9.1. In addition to its covenants, acknowledgments and agreements
otherwise set out herein, the Licensor represents and warrants:
9.1.1. This Agreement constitutes a valid and binding obligation
of the Licensor;
9.1.2. That it has full power and authority to enter into this
Agreement and grant the rights herein given to the
Licensee;
9.1.3. To protect, indemnify and hold harmless the Licensee from
all costs, damages, expenses, (including reasonable legal
fees), claims and other liabilities imposed by law as a
result of a breach by the Licensor of any material terms of
this Agreement;
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9.1.4. That it has obtained escrow of the formula and
manufacturing process for the Products, such Escrow
Agreement to be drafted with standard commercial terms
and conditions and the particulars provided to the
Licensee;
9.1.5. That it will not grant any other person any right in
conflict to the rights granted to the Licensee hereunder;
9.1.6. That it will notify the Licensee on a timely basis of any
change in the manufacturer of the Products;
9.1.7. Refer to the Licensee all queries, orders and requests
relating to the purchase of Products intended for market
within the Territory;
9.1.8. Provide the Licensee with such, information as the Licensor
considers appropriate in order to assist the Licensee in the
preparation of sales promotion material and shall provide
the Licensee with its sales promotional material relating to
the Products in order to facilitate advertising of the
Products within the Territory;
9.1.9. Ensure all the Products meet the Licensor's
specifications for the applicable Products;
9.1.10. In addition to any warranty requirements pursuant to the
terms of this Agreement, all Products supplied by the
Licensor shall be of merchantable quality and shall meet any
and all U.S. governmental standards applicable to such
Products. The Licensee shall have the right, through its
duly appointed representative, to examine, inspect and/or
test any and all of the Products supplied by the Licensor,
and the production lines, production facilities and storage
facilities. Without limiting the foregoing, the Licensor
shall not alter or substitute ingredients used in the
production of the Products without the prior written consent
of the Licensee and without compliance with U.S.
governmental standards applicable to such Products. The
Licensor warrants that the goods delivered in accordance
with this Agreement shall measure up to the same standard
and analysis as the sample Products previously submitted to
the Licensee. The Licensee may, but is not required to do
so, from time to time, conduct laboratory tests on the
Products to verify that the content (if applicable) of the
Products confirm to a Certificate of Analysis (the
"CERTIFICATE") which must be provided to the Licensee within
fourteen (14) days following each shipment of Products, if
so requested. Such testing shall be conducted to assure
quality control, and any material deviation from the
Certification shall be deemed a breach of this Agreement,
or, at the election of the Licensee, the Licensor shall be
required to immediately comply with the supplying the
Products in accordance with the criteria in the Certificate.
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9.1.11. Maintain comprehensive product liability insurance coverage
on all Products sold to the Licensee and will ensure that
the Licensee is named as an additional insured on such
product liability insurance. Such insurance shall have
combined single occurrence limit of not less than one
million U.S. dollars ($1,000,000.00). Such insurance shall
not only provide for consumer physical injury but also
consumer property damage as well.
9.1.12. Obtain all applicable permits and product identification
numbers in order for the Products to be distributed in
the Territory.
9.1.13. The Licensor agrees to furnish to the Licensee in a timely
manner Product information regarding the Products, which
Product information shall accurately describe the nature,
character and prescribed use of the Products and which shall
be appropriate for distribution to consumers and associates
of the Licensee in the discretion of the Licensee. The
Product information shall not misrepresent or in anyway
mislead the Licensee, its associates or consumers with
respect to the Products. The Licensee may incorporate such
Product information in its sales and advertising and
promotional literature and materials (the "SALES
MATERIALS"). Such Product information utilized shall not be
deemed as Confidential Information as set forth in this
Agreement.
9.1.14. The Licensor represents it has the capability to supply the
Products necessary to meet the anticipated sales of the
Licensee for the duration of the Agreement.
9.1.15. The Licensor undertakes to inform the Licensee of any offer
it or its shareholders receive for the shares in the share
capital of the Licensor or the business of the Licensor.
.Unless prevented to do so by the terms of any such offer,
the Licensor shall also inform the Licensee of all
negotiations to that effect in order to allow the Licensee
to make a fully informed offer for said shares or business,
as the case may be.
10. CONFIDENTIALITY/NON-COMPETITION
10.1. The Parties agree that the following terms and conditions apply when
one of the Parties ("DISCLOSER") discloses Confidential Information
to the other ("RECIPIENT") under this Agreement. The Parties further
agree that the mutual objective under this Agreement is to provide
appropriate protection for Confidential Information while
maintaining the ability to conduct respective business activities
and/or evaluation of Confidential Information. In no way is this
Agreement intended to obligate either party to enter into further
agreement with each other concerning the Confidential Information,
or to undertake development, production or trial with respect to the
Confidential Information. Confidential Information shall include
formula(e), revisions of formula(e), processes and methods as well
as business plans, financial plans, financial data,
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product development plans, marketing plans and strategies,
distributor lists, manufacturing techniques and methods, research
data and similar information of that are valuable, special, unique
and proprietary assets of Discloser.
10.2. The Discloser and the Recipient will coordinate and control the
disclosure. Confidential Information will be disclosed either: (i)
in writing; (ii) by delivery of items; (iii) by initiating access to
Confidential Information, such as may be contained in a data base;
or (iv) by oral and/or visual presentation. Recorded on this
Agreement is the representative of Recipient who is designated to be
a Recipient's "Contact Person" for the disclosure of Confidential
Information. The Discloser will deliver all Confidential Information
to such Contact Person. All such deliveries shall be received only
by the Contact Person.
10.3. All Confidential Information disclosed to Recipient shall be kept
confidential by Recipient and treated with at least the same level
of protection as Recipient gives its own confidential information of
similar nature, but no less than a reasonable level of protection.
Recipient shall promptly notify Discloser if it becomes aware of any
unauthorized disclosure or use of the Confidential Information;
10.3.1. Recipient shall not disclose any portions of the
Confidential Information to any third party or non-employee,
including subcontractors, without the written consent of
Discloser. Recipient may disclose Confidential Information
to its employees who have access to the Confidential
Information provided the Recipient advises such employees
that Recipient is bound by a Confidentiality Agreement
concerning the Confidential Information which is also
binding upon the employees;
10.3.2. Recipient may not copy or make any commercial or personal
use of any part of the Confidential Information except to
the extent necessary for evaluation;
10.3.3. Recipient agrees to use and store the Confidential
Information out of view from unauthorized viewing and
accessible only to the extent necessary to carry out the
purposes of the Agreement.
10.3.4. Recipient will not make any report, publication or give
interviews concerning Confidential Information without
Discloser's prior written consent.
10.3.5. Recipient must give the Discloser prompt notice of such
breach and make reasonable effort to obtain a protective
order.
10.4. Notwithstanding early termination of this Agreement, all obligations
of confidentiality with respect to Confidential Information
disclosed to or obtained by Recipient prior to the date such
termination shall continue until five (5) years after termination
date.
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10.4.1. Upon termination of this Agreement, or upon request by
either Party, Recipient shall immediately as its option
either destroy or return to Discloser all Confidential
Information provided to it, including all original and
backup copies thereof.
11. PROPRIETARY RIGHTS
11.1. Notwithstanding anything in this Agreement to the contrary the
Licensee hereby acknowledges and confirms that it does not acquire
any right, title or interest in and to the Trademarks or any trade
mark, patent, formula, concept, method, process, invention, design,
technical and commercial information, know-how, trade secrets,
copyright or other intellectual property (the "INTELLECTUAL
PROPERTY") of the Licensor save and except as may be specifically
licensed to the Licensee under the License Agreement. Title to the
Intellectual Property shall at all times remain the sole property of
the Licensor. In the event of termination of the License Agreement
for any reason whatsoever then the Licensee agrees not to use the
Intellectual Property and Trademarks or a name similar in form or
sound whether in the English language or otherwise.
12. WARRANTY
12.1. The warranty granted to the Licensee in regard to the Products is
that of the formulator and manufacturer. The Licensor does not
provide any or any additional or further warranty in regard to the
Products.
12.2. Since the Licensee will have exclusive control over the sale,
marketing and distribution of the Products under the Trademarks,
including ordering, storage and disposition, the Licensor shall not
have any liability whatsoever, save and except as may be
specifically stated in this Agreement.
13. TERMINATION
13.1. In addition to other provisions set out in this Agreement regarding
termination, this Agreement shall also terminate:
13.1.1. Upon agreement of the parties to do so;
13.1.2. In the event that the Licensee makes an assignment for
the benefit of its creditors, becomes bankrupt or
insolvent or commences any proceedings respecting
reorganization, dissolution, winding-up or liquidation;
13.1.3. In the event that any amount payable by the Licensee to the
Licensor is not paid on the due date and the Licensee fails
to remedy such default within thirty (30) days following
receipt of written notice thereof from the Licensor;
13.1.4. In the event that either party breaches a material term of
this Agreement and such breach is not remedied within
forty-five (45) days of written
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notice by the other party, then the other party may, at its
sole discretion, terminate upon further notice or may take
whatever action at law or equity it deems appropriate,
including injunctive relief, to obtain an appropriate
remedy;
13.1.5. At the option of Licensor as permitted under Articles 5.3
and 8.1.6 herein.
13.2. Termination under this section, for whatsoever reason, shall not
preclude or impair the rights of any party to seek any other
available remedy at law arising out of the breach of this Agreement.
14. EFFECT OF TERMINATION
14.1. Upon the expiration or earlier termination of this Agreement:
14.1.1. All rights granted to the Licensee hereunder shall
automatically revert to the Licensor and the Licensee
shall execute any and all documents evidencing such
automatic reversion;
14.1.2. The Licensee shall immediately stop any use of the
Trademarks, including any use in connection with the
marketing, distributing, selling, or in any way dealing with
any Products, or any item (e.g., cartons, containers, tags,
packaging, wrapping, advertising, promotional or display
material) pertaining to the Products, which display either
the Trademarks, the Owner's or the Licensor's name;
14.1.3. The Licensee shall return to the Licensor or destroy, at the
Licensor's option, all material bearing the Trademarks, all
specifications and all other materials or documents provided
to the Licensee and all written material of the Licensee
that contains Confidential Information of the Licensor;
14.1.4. The Licensee shall not use any trademarks similar to the
Trademarks;
14.1.5. The Licensee may sell existing inventories of Products
(including Products on order) on a nonexclusive basis, for a
period of ninety (90) days, subject to all of the other
terms and conditions hereof. Thereafter Licensee shall cease
all sales of Products and upon the Licensor's request, the
Licensee shall return to the Licensor all unsold Products at
Licensor's cost, including payment of the original purchase
price paid to Licensor by Licensee for such Products.
15. ARBITRATION
15.1. This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the Province of Ontario. All disputes in
relation to this Agreement, other than a dispute regarding the
non-payment of any monetary
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amount required by the Agreement or injunctive relief, be referred
to an finally resolved by Arbitration, under the rules of the ADR
Institute of Ontario (the "Rules"), which Rules are deemed to be
incorporated by reference into this Article. The tribunal shall
consist of One (1) Arbitrator. The Parties will endeavour within
twenty-one (21) days of the matter being referred to Arbitration to
agree upon an Arbitrator, failing which the Arbitrator shall be
appointed in accordance with the Rules. The place of Arbitration
shall be Ottawa, Ontario. The language of the Arbitration shall be
English. The parties agree that the Arbitrator shall be requested to
make his award within sixty (60) days following the later of
conclusion of the Arbitration hearings or any exchange of final
written submissions by the Parties and further agree that the word
of the Arbitrator shall be final and binding and without appeal.
16. ASSIGNMENT
16.1. The Licensee shall not assign this Agreement without the Licensor's
written approval, which approval shall not be unreasonably withheld.
17. GENERAL
17.1. The parties will exercise every reasonable effort to meet their
respective obligations under this Agreement but shall not be liable
for delays resulting from superior force or other causes beyond
their reasonable control, provided that the party prevented from
rendering performance notifies the other party immediately of the
circumstances preventing it from meeting its obligations and uses
its best efforts to render performance in a timely manner. Any such
cause will extend the performance of the delayed obligation to the
extent of the delay so incurred. Financial problems shall not be
included in causes included herein and no cause shall entitle the
Licensee to delay payment of any monies otherwise due under this
Agreement.
17.2. The parties shall execute such further assurances and other
documents and instruments and do such further and other things as
may be necessary to implement and carry out the intent of this
Agreement.
17.3. The provisions herein constitute the entire Agreement between the
parties and supersede all previous expectations, understandings,
communications, representations and agreements whether verbal or
written, between the parties with the respect to the subject matter
hereof.
17.4. If any provision of this Agreement is unenforceable or invalid for
any reason whatever, such unenforceability or invalidity shall not
affect the enforceability or validity of the remaining provisions of
this Agreement, and such provision shall be severable from the
remainder of this Agreement.
17.5. Any notice required or permitted to be given hereunder shall be
in writing and shall be effectively given if:
Page 14
17.5.1. Delivered personally;
17.5.2. Sent by prepaid courier service or mail; or
17.5.3. Sent by telecopy, telex, fax or other similar means of
electronic communication including e-mail.
17.5.4. Addressed to the relevant party at the address/number
shown for the party at the beginning of this Agreement.
Any notice so given shall be deemed conclusively to have been given
and received when so personally delivered or, if sent by fax,
telex, telecopy or other electronic communication including e-mail,
on the first business day thereafter, or if sent by mail on the
tenth business day thereafter. Any party may change any particulars
of its address/number for notice by notice to the other in the
manner above described.
17.6. Time shall be of the essence hereof.
17.7. No waiver by any party of any breach by any other party of any of
its covenants, obligations and agreements hereunder shall be a
waiver of any subsequent breach of any other covenant, obligation
or agreement, nor shall any forbearance to seek a remedy for any
breach be a waiver of any rights and remedies with respect to such
or any subsequent breach.
17.8. The headings in this Agreement form no part of this Agreement and
shall be deemed to have been inserted for convenience only.
17.9. Wherever the neuter, singular number or a gender is used in this
Agreement, the same shall be construed as including the plural and
the masculine, feminine and neuter respectively, where the fact or
context so requires.
17.10. Each party shall at all times comply with laws and regulations
applicable to the transactions contemplated by this Agreement.
17.11. This Agreement may be executed in several counterparts, each of
which shall be deemed original, but all of these together shall
constitute one and the same.
17.12. The recitals and schedules attached hereto form an integral part of
this Agreement.
17.13. All amounts referred to in this Agreement are in Canadian currency
unless otherwise specified.
17.14. This Agreement ensures to the benefit of and is binding upon the
parties and their respective successors and assigns, as permitted
herein.
Page 15
THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT TO BE EFFECTIVE AS OF JUNE 30,
2002 AT 3 PM P.D.T.
NUTRI-DIEM INC. ESSENTIALLY YOURS
INDUSTRIES, INC.
/s/ MICHEL GRISE /s/ JAY SARGEANT
- -------------------------------------- --------------------------------------
Per: Michel Grise, President Per: Jay Sargeant, President
- -and- -and-
/s/ LOUISE DESMARAIS /s/ BARRY LAROSE
- -------------------------------------- --------------------------------------
Per: Louise Desmarais, Secretary Per: Barry LaRose, Secretary
SCHEDULE "A"
PRODUCTS
(See document attached)
SCHEDULE "B"
TRADEMARKS
(See document attached)
SCHEDULE "A"
PRODUCTS
Sea Krit
Neo Cell
Melan Plus
Golden Treat
Definition
Emulgent
Agrisept-L
Beaugest
Citrex
Calorad
NRG
Triomin
Bellaffina
Parablast
Livocare
Ultra Form
SCHEDULE "B"
TRADEMARKS
Product Status
Sea Krit(R) Registered trademark
Neo Cell(R) Registered trademark
Melan Plus(R) Registered trademark
Golden Treat(R) Registered trademark
Definition(R) Registered trademark
Emulgent(R) Registered trademark
Agrisept-L(R) Registered trademark
Beaugest(R) Registered trademark
Citrex(R) Registered trademark
Calorad(R) Registered trademark
NRG Abandoned
Triomin Abandoned
Bellaffina(TM) Allowed ITU filed
Parablast(TM) Allowed ITU filed
Livocare
Ultra Form