SALE AND PURCHASE AGREEMENT BETWEEN MED-EQ AS AND AMERIKAL NUTRACEUTICAL CORP
BETWEEN
MED-EQ
AS
AND
AMERIKAL
NUTRACEUTICAL CORP
CONTENTS
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ART.
1
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DEFINITIONS
AS USED IN THIS AGREEMENT
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3
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ART.
2
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ISSUING
OF PURCHASE NOTICE
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4
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ART.
3
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SALE
AND PURCHASE OF PRODUCTS
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4
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ART.
4
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LEGAL
SITUATION OF AMERIKAL
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5
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ART.
5
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TRADEMARK,
PROPRIETARY RIGHTS, AND PACKAGING
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5
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ART.
6
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COMPETING
PRODUCTS
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6
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ART.
7
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MINIMUM
PURCHASES
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6
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ART.
8
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MED-EQ'S
PRICES AND TERMS OF SALE
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6
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ART.
9
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PRODUCT
LIABILITY
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7
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ART.
10
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SECRECY
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7
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ART.
11
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FORCE
MAJEURE
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8
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ART.
12
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TERM
OF THIS AGREEMENT AND TERMINATION
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8
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ART.
13
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EARLY
TERMINATION
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9
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ART.
14
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INDEMNITY
AND COMPENSATION
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9
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ART.
15
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GOVERNING
LAW AND ARBITRATION
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9
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ART.
16
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ASSIGNABILITY
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10
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ART.
17
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PLEDGE
OR LIEN
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11
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ART.
18
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NOTICES
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11
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LIST
OF APPENDIXES
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12
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2
This
agreement ("Agreement") between Med-Eq A/S, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇.▇▇. 934720016 (hereinafter referred to as "Med-Eq") and Amerikal
Nutraceutical Corp, with registered offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇
▇▇▇▇▇, ▇▇▇ (hereinafter referred to as the "Amerikal") (collectively referred
to
as "the Parties"):
WITNESSETH
| Whereas |
Med-Eq
has developed and causes to be manufactured certain raw materials
and
pre-mixes (hereinafter referred to as the "Product") as described
in
Appendix
1
attached hereto;
|
| Whereas |
the
Amerikal is engaged in the business of manufacturing, marketing,
sales and
distribution of certain dietary supplements and related products;
and
|
| Whereas |
Amerikal
is desirous of purchasing the Product for use in its own formulations
as
an aphrodiziac and/or in sports products, and Med-Eq
is desirous of supplying the Product to Amerikal for this purpose
in the
Territory (as hereinafter defined)
|
Now,
therefore, in consideration of the foregoing recitals the Parties agree as
follows:
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Art.
1
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Definitions
as used in this Agreement
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1.1
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The
"Product" as used in this Agreement shall mean the Product described
in
Appendix 1, developed by and manufactured under the control of
Med-Eq and
such other products as agreed in writing from time to time between
the
Parties and as amended in Appendix
1.
The “Product” shall mean both the finnished product formulations as well
as pre-mixes and other less confectioned forms.
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1.2
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"Territory"
as used in this Agreement shall mean the Whole
World
|
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1.3
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"Trademark"
shall mean the trademark, design and get-up described in Appendix
3
hereof.
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1.4
|
"Working
Week" as used in this Agreement shall mean five (5) days under
Norwegian
law, whether consecutive or
otherwise.
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1.5
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"Information"
as used in this Agreement shall mean any identified business or
trade
secret of the other party such as - but not limited to - documentation
,
information concerning the Product and quality control obtained
in written
or verbal form.
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1.6
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"Affiliate"
in relation to either Party means any corporation which Controls
or is
Controlled by that Party.
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1.7
|
“Agreement”
means this Sale and Purchase Agreement and any and all Schedules
hereto as
may be amended, modified or supplemented from time to time in accordance
with the terms hereof.
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3
| 1.8 |
“Approved
Purchase Notice” shall have the meaning ascribed thereto in Clause
3.1.
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1.10
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“Purchase
Notice” shall have the meaning ascribed thereto in Clause
2.1
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1.11
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“Term”
means the period commencing from the Commencement Date and ending
upon its
termination in accordance with this Agreement.
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Art.
2
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Issuing
of Purchase Notice
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2.1
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Amerikal
may from time to time during the Term request Med-Eq to manufacture,
sell
and deliver to the Amerikal such Products and in such quantities
thereof
as the Amerikal may require by giving written notice thereof to
the
Med-Eq. Each such notice served on Amerikal (the “Purchase Notice”) shall
state:
|
the
Product(s) in respect of which the Purchase Notice is given;
the
quantities thereof required by Amerikal; and
the
date(s) on which the Product(s) are to be delivered.
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2.2
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Each
Purchase Notice shall constitute a separate order to Med-Eq. Med-Eq
shall
use its best efforts to accept each Purchase Notice, and shall
forthwith
Amerikal of the Purchase Notice in writing if Med-Eq is for any
reason
unable to fulfil the requirements of the Purchase Notice. If Med-Eq
fails
to give such notice to Amerikal within seven (7) days of the date
of
issuance of the Purchase Notice, Med-Eq shall be deemed to have
accepted
the Purchase Notice in its
entirety.
|
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2.3
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Effective
from the end of the first 6 months period after signing of this
Agreement,
Amerikal shall, in order to secure Med-Eq's production planning,
prepare a
revolving purchase budget for six (6) months, such purchase budget
to
updated once every month.
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4
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Art.
3
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Sale
and Purchase of Products
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3.1
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In
the event that Med-Eq accepts or is deemed to accept any Purchase
Notice
(the “Approved Purchase Notice”), Med-Eq shall sell, and Amerikal shall
purchase, the Products to which such Approved Purchase Notice relates
subject to the terms of this Agreement.
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3.2
|
Unless
otherwise agreed by the Parties in writing, in relation to any
Approved
Purchase Notice, Med-Eq shall:
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3.2.1
|
provide
Amerikal with full details of the location at which Med-Eq will
effect
delivery pursuant to such Approved Purchase Notice at least seven
(7) days
prior to each delivery date stated in such Approved Purchase Notice;
and
|
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3.2.2
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manufacture
and sell to Amerikal the Products stated in any Approved Purchase
Notice
and in the quantities stated in the Approved Purchase Notice and
deliver
them to Amerikal at the location referred to in Clause 3.2.1 by
the date
or dates stated in the Approved Purchase Notice.
|
All
Products sold under this Agreement are on an “CPT” basis and the provisions of
the Incoterms 2000 published by the International Chamber of Commerce shall
apply (except to the extent inconsistent with this Agreement).
| 3.3 |
Risk
relating to the Products relating to an Approved Purchase Notice
shall
pass from Med-Eq
and vest in Amerikal when custody and control of the Products are
delivered
to Amerikal (or to such other person as may be authorised or designated
by
Amerikal).
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Title
to
the Products shall pass from Med-Eq to Amerikal upon full payment by
Amerikal
to Med-Eq.
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3.4
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Med-Eq
represents and warrants to Amerikal that each Product sold by Med-eq
under
this Agreement is of satisfactory quality and is reasonably fit
for the
purposes for which such Product is ordinarily required or used.
Med-Eq is
able to pass clean and marketable title to such Product in accordance
with
the terms of this Agreement.
|
| Art. 4 |
Legal
Situation of Amerikal
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4.1
|
Amerikal
shall buy and sell in his own name and for his own account. He
shall act
as independent trader towards both Med-Eq as well as the customers.
He
shall effectively promote the sale of the Product in the Territory,
without being authorized to act in the name of Med-Eq. Furthermore,
he
shall safeguard the interests of Med-Eq with the due diligence
of a
responsible businessman and shall always keep Med-Eq informed of
his
activities as well as of the market conditions within the
Territory.
|
5
| Art. 5 |
Trademark,
Proprietary Rights, and
Packaging
|
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5.1
|
All
Trademarks, Documentation and Proprietary Rights relating to the
Product
is the sole property of Med-Eq, and Amerikal the cooperation under
this
Agreement shall not give Amerikal any share in such rights.
|
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5.2
|
Med-Eq
authorises hereby Amerikal under the Term of this Agreement to
use the
Product in its own formulations, to be sold under its own trademark,
for
all purposes other than as an anti-depressant or against
dementia.
|
Amerikal
warrants that it shall not use the Product in formulations for any of these
two
purposes
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5.3
|
Med-Eq
authorises hereby Amerikal to refer to documentation performed
by Med-Eq
for the Product or for formulations containing the Product, but
shall in
the case of such references are made, ensure that Med-Eq in no
way shall
be liable for Amerikal’s or its customers’ product claims
|
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5.4
|
Amerikal
warrants that all packaging materials and all marketing material
to be
used for products containing the Product shall bear the text “Contains
YTE®. A registered trademark owned by Med-Eq AS,
Norway.”
|
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5.5
|
Amerikal
undertakes to accept any changes in the production process, the
specification, that Med-Eq at its sole discretion may decide in
order to
improve the quality of the Product or in order to meet changes
in
legislation or customer demand.
|
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5.6
|
Amerikal
is not without Med-Eq's prior written consent in any way - electronically
on the Internet or otherwise - entitled to register any of Med-Eq's
intellectual proprietary rights such as - but not limited to -
trademarks,
product names, descriptions etc.
|
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Art.
6
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Competing
Products
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6.1
|
The
Distributor shall not during the term of this Agreement and for
a period
of five (5) years after the expiry of this agreement for whatever
reason
manufacture, cause to be manufactured, market, sell, distribute,
represent, or otherwise deal or have any interest in any goods
in the
Territory that are identical,
or if said goods fulfils identical purposes and contains extract
from
eggs, without first obtaining Med-Eq's written consent. Med-Eq
shall
respond to any such written request for permission within ninety
(90) days
of receipt of the request.
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Art.
7
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Minimum
Pur-chases
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7.1
|
Minimum
purchases by the Distributor the first five (5) calendar years
of this
Agreement of the Product shall be as stated in Appendix
1.
Thereafter, minimum purchases shall be agreed upon not later than
15th
of
September of each calendar year, the first such agreement to be
reached
not later than 15th
of
September, 2010.
|
6
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Art.
8
|
Med-Eq's
Prices and Terms of Sale
|
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8.1
|
Med-Eq's
sales price for the Product shall be as stated in Appendix
1
attached hereto until further notice. During the term of this Agreement,
the prices for orders not yet confirmed by Med-Eq may be changed
by Med-Eq
subject to three (3) month's prior notice in
writing.
|
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8.2
|
Invoicing
and payments for the Product shall take place in NOK for any given
Product.
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8.3
|
The
conditions of payment shall Irrevocable L/C or other payment methods
acceptable by both parties.
|
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8.4
|
The
delivery terms of the Product shall be " CPT LAX (Los Angeles)
Inco-terms
2000".
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8.5
|
Med-Eq
shall prepare all export documentation, supply, package and ship
the
Product. Title to the Products shall pass to the Distributor when
full
payment for each consignment has taken
place.
|
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8.6
|
Amerikal
shall store the Product strictly in accordance with the instructions
given
by Med-Eq, see Appendix
1.
|
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8.7
|
Amerikal
shall inspect the Product for defects promptly upon receipt thereof.
Products which are not rejected in writing within fourteen (14)
days of
receipt by Amerikal shall be deemed to be in good condition on
receipt.
|
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Med-Eq
shall substitute at its own expense such defective Products by
delivery of
Products free from defects. This replacement constitutes the only
liability of Med-Eq in relation to defective Products, see, however,
Article 9 below concerning injury to third parties caused by defects
in
the Product.
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8.8
|
In
case of delay beyond Med-Eq´s control or in case of defects Med-Eq is not
liable for loss of production, loss of profit or any other consequential
economic loss.
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Art.
9
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Product
Liability
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9.1
|
Med-Eq
shall indemnify and hold the Distributor harmless from losses or
injuries
suffered by third parties caused by defects in the Product. Med-Eq
shall
not be liable for loss of production, loss of profit or any other
consequential economic loss.
|
Med-Eq’s
responsibility to indemnify and hold Amerikal harmless shall be limited to
USD
1 000 000 (one million).
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9.2
|
Amerikal
shall indemnify and hold Med-Eq harmless against any claims including
product liability claims relating to Amerikal’s confectioning of the
finished Products, application, administra-tion, packaging, use,
storage,
promotion, marketing, resale and distribution of the Product and
from any
claims concerning loss of production, loss of profit or any other
consequential economic loss.
|
7
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Art.
10
|
Secrecy
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10.1
|
Amerikal
untertakes to treat received Information as strictly confidential
and
therefore not to disclose it to any third party (except reliable
employees
under secrecy obligation), and to make no commercial use of it
without the
express consent of Med-Eq. This obligation applies to Information
disclosed to Amerikal prior to entering into this Agreement as
well as
Information disclosed to Amerikal under this Agreement. In case
Information is received in oral form the above obligation shall
only apply
to the extent such oral Information has been confirmed in writing
to
Amerikal and marked "Confiden-tial" within forty-five (45) days
after the
date of oral disclosure.
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10.2
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Amerikal
agrees to protect the Information from disclosure to any unauthorized
party.
|
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This
obligation shall not apply to:
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| a) |
Information
which, at the time of disclosure, is already in the public domain;
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b)
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Information
which, after disclosure, becomes a part of the public domain by
publication through no violation of this
Agreement;
|
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c)
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Information
which Amrikal is able to prove to be in possession of prior to
any
disclosure. In this case, Amerikal will demonstrate that he is
in
possession of this Information in writing within thirty (30) days
of
receipt of Information, or forego application of this
provision;
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d)
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Information
which is hereafter lawfully disclosed by a third party to Amerikal,
where
third party did not acquire the Information under a still effective
obligation of confidentiality to
Med-Eq.
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10.3
|
Nothing
in this article shall be construed as granting to Amerikal, by
implication
or otherwise, any license with respect to the Information or any
patent
applications, patents or any claims of patent now or hereafter
filed or
issued with respect to the
Information.
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Art.
11
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Force
Majeure
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11.1
|
The
following circumstances shall be considered as grounds for relief
if they
impede the performance of the Agreement or makes performance unreasonably
onerous: industrial disputes and any other circumstance beyond
the control
of the parties such as fire, war, mobilization or military call
up of a
comparable scope, requisition, seizure, currency restrictions,
insurrection and civil commotion, shortage of transport, general
shortage
of materials, restrictions in use of power and defects or delays
in
deliveries by sub-contractors caused by any such circumstance as
referred
to in this article.
|
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The
above described circumstances shall constitute grounds for relief
only if
their effect on the performance of the Agreement or the delivery
of a
specific consignment of the Product could not be foreseen at the
time of
formation of the Agreement or the time of delivery of a specific
consignment of the Product.
|
8
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The
party wishing to claim relief shall notify the other party in writing
without delay on the intervention and on the cessation of such
circumstance.
|
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If
grounds for relief prevent Amerikal from fulfilling his obligations,
he
shall compensate Med-Eq for expenses incurred in securing and protecting
the Product.
|
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11.2
|
In
the event that the Force Majeure events as defined in Article 13.1
last
longer than six (6) months either party is entitled to terminate
this
Agreement with one month's prior written notice, such termination
to be
effective at the end of any month corresponding to the expiry month
of
said notice period.
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Art.
12
|
Term
of this Agreement and
Termination
|
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12.1
|
This
Agreement shall take effect on __________, 2005 and shall remain
in force
until 31st
of
December 2010. Hereafter the Agreement shall remain in force for
consecutive terms of twelve (12) months at a time unless terminated
by one
of the parties with a prior written notice of three (3) months
which at
the earliest can be given on the 30th
of
September 2010 for expiry the 31st
of
December 2010.
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12.2
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Any
termination of this Agreement as provided herein shall not relieve
either
party of any obligation arising hereunder prior to such termination,
including, but not limited to, Amerikal’s obligation to
|
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(a)
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purchase
Product covered by purchase orders submitted by Amerikal;
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(b)
|
pay
to Med-Eq the cost of any raw materials, including packaging, purchased
by
Med-Eq in contemplation of purchase orders to be received in accordance
with Appendix
4,
or Med-Eq's obligation to ship products on accepted
orders.
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12.3
|
If
Med-Eq, for whatever reason, should deem it necessary to cease
production
of the Product, Med-Eq shall be entitled to terminate this Agreement
by
giving the Amerikal prior written notice of three (3)months. Neither
of
the parties shall be obliged to pay any compensation to the other
party
for loss of income or goodwill to the other party in such
instance.
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12.4
|
If
Med-Eq should deem it necessary to recall the Product from the
Territory,
or in the event that recall of the Product is required by authorities,
Med-Eq shall be entitled to terminate this Agreement by giving
Amerikal
three (3) months' written notice. Neither of the Parties shall
be obliged
to pay any compensation to the other party for loss of income or
goodwill
to the other party in such
instance.
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9
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Art.
13
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Early
Termination
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13.1
|
Where
one of the parties commits an essential breach of this Agreement
the other
party is entitled to terminate the Agreement, effective upon receipt
of
termination notice.
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An
essential breach is deemed to be:
|
1)
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either
party is adjudged bankrupt; suspends payment; or in any similar
manner
discontinues its business,
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2)
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Amerikal
violates Articles 5.2, 5.3, 5.4, 5.6, 6.1, 7.1, 8.3, 10.1 and
10.2,
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3)
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Med-Eq
violates Articles 3.2.2.
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4)
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If
Amerikal fails to make any payment when
due.
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13.2
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In
case one of the parties commits a breach in respect of its obligations
under this Agreement which breach is not covered by Article 13.1,
and
where it does not make good such breach within thirty (30) days
after
being requested in writing to do so, the other party shall be entitled
to
terminate this Agreement, effective upon receipt of termination
notice.
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Art.
14
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Indemnity
and Compensation
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14.1
|
No
claims for indemnity or compensation can be lodged by reason of
the
termination of the Agreement on any grounds, save where these claims
are
based on breach of Agreement by one of the
Parties.
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Art.
15
|
Governing
Law and Arbitration
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15.1
|
The
Agreement shall be deemed to have been entered into and to be construed
and interpreted in accordance with the laws of Norway as applicable
between residents of Norway.
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15.2
|
Amerikal
is obliged to accept changes in the Agreement made in order to
comply with
changes in mandatory law affecting this
Agreement
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15.3
|
Any
dispute, controversy, or claim arising out of or in connection
with the
Agreement, including any question regarding its existence, validity,
or
termination, shall be finally resolved by arbitration under the
Rules of
The International Chamber of Commerce (excluding the conciliation
Procedure) in force at the date of the request for arbitration,
which
Rules are deemed to be incorporated by reference into this
clause.
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The
tribunal shall consist of three
arbitrators.
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The
place of arbitration shall be Oslo,
Norway.
|
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The
language of the arbitration shall be
English.
|
10
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15.4
|
The
governing language of this Agreement shall be English. Any translations
made shall be for guidance only.
|
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15.5
|
If
any provision of this Agreement or portion thereof shall to any
extend be
deemed invalid or unenforceable by any Court or authority having
jurisdiction, the parties shall agree upon such adjustment of this
Agreement as is necessary in order to secure as far as possible
the vital
interests of the Parties and the main objectives hereof at the
time of
signing this Agreement. Failing an understanding between the Parties
on
such adjustments they may be made by the arbitration tribunal in
the
course of any pursuant litigation.
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15.6
|
Failure
of a party to enforce one or more of the provisions of this Agreement
or
to exercise any option or other rights hereunder or to require
at any time
performance of any of the obligations hereof shall not be construed
to be
a waiver of such provisions by such party or to in any way affect
the
validity of this Agreement or such party´s right thereafter to enforce
each and every provision of this Agreement, nor to preclude such
party
from taking any other action at any time which it would legally
be
entitled to take.
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15.7
|
The
signatures of the parties set forth below is their acknowledgement
that
this Agreement sets forth their entire understanding and agreement
and
supersedes with effect from the commencement of this Agreement
as provided
in Article 14.1 any and all prior understandings, contracts or
agreements
between the Distributor and Med-Eq with respect to the subject
matter of
this Agreement. There are no representations or promises between
the
Parties hereto except as set forth herein. No provision of this
Agreement
may be waived, changed, terminated, modified or discharged, orally
or
otherwise, except by subsequent written agreement signed by the
other
party against whom such waiver, change, termination, modification
or
discharge is sought to be enforced.
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Art.
16
|
Assignability
|
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16.1
|
This
Agreement can be assigned by
Med-Eq.
|
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16.2
|
This
Agreement is non-assignable by Amerikal without the written consent
of
Med-Eq.
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Art.
17
|
Pledge
or Lien
|
|
18.1
|
Amerikal
shall have no pledge or lien on the property of
Med-Eq.
|
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Art.
18
|
Notices
|
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18.1
|
Any
notice made in connection with this Agreement or performance thereunder
shall be sent to the addresses specified below, or such other addresses
as
the parties may notify in writing to each other from time to time,
by air
courier or by telefax, followed immediately by a confirmation letter
by
airmail.
|
11
|
If
to Med-Eq:
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Med-Eq
A/S
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Farmannsveien
▇▇ - ▇▇
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▇-▇▇▇▇
▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇
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Attn.:
Managing Director
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Fax:
▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇
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If
to Amerikal:
|
Amerikal
Nutraceutical Corp.
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▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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▇▇▇
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Attn.:
President
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Fax:
▇▇.▇▇▇.▇▇▇.▇▇▇▇
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This
Agreement of which the appendices form an integral part, is executed in two
original copies, one of these having been delivered to Amerikal and the other
to
Med-Eq.
In
Tønsberg, Norway, this day of 2005.
Med-Eq
A/S
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By:
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____________________
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In
____________, _____________, this day of 2005.
Amerikal
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By:
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____________________
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12
List
of Appendixes
| Appendix 1 |
Product
Description
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| Appendix 2 |
Trademark,
Design etc.
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| Appendix 3 |
Report
Form
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APPENDIX
1.1
PRODUCT
DESCRIPTION
Tthe
powder of fertilized and incubated hen eggs, YTE® - EU ▇▇▇. No 0656781, US ▇▇▇
No 5641517, for the use as an aphrodiziac/energy and in sports products.
Med-Eq
shall supply the YTE® powder.
Registration
Category: Food or dietary supplement
Shelf
life:
Batch
sizes per single order: Quantities divisible by 100 kilograms
Price:
NOK 1 500 per kilogram
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Minimum
quantities:
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Year
1 (1st 12 months)
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3000
kilograms
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Year
2 (2nd 12 months)
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12000
kilograms
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Year
3 (3rd 12 months)
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12000
kilograms
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Year
4 (4th 12 months)
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12000
kilograms
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Year
5 (5th 12 months)
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12000
kilograms
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| Storage Conditions: |
To
be kept in unopened and sealed containers at 4 - 15 degrees C until
confectioning. Opened containers are not to be stored. Avoid high
humitity.
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APPENDIX
2
TRADEMARK,
DESIGN, ETC.
YTE
®
APPENDIX
3
To:
From:
Date:
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Product:
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Firm
and Binding Orders
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Forecast
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|||||
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Monthly
Past Month
Report
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Month:
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Month:
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Month:
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Month:
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Month:
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Month:
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Stock
begin-ning month
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|||||||
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Purchase
from Med-Eq
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Sales
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|||||||
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Stock
end month
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|||||||
To
be sent by fax to ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇ before the fifth working day of each
month.
Addendum
to
Sale
and Purchase Agreement of Sept 5 2005
between
Med-Eq
AS
And
Amerikal
Nutraceutical Corp
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1.
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Med-Eq
hereby grants to Amerikal the exclusive USA rights to purchase
the Product
for formulation and production of finished products and shall refrain
from
accepting orders from third parties domiciled in the USA for as
long as
the Sale and Purchase Agreement is valid.
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2.
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This
shall not limit Med-Eq from marketing finished products containing
the
Product in the USA or from accepting orders or otherwise dealing
in
finished products containing the Product. In case Med-Eq decides
to enter
into agreements for the USA market regarding the sale of its finished
products containing the Product, Med-Eq shall offer to Amerikal
the first
right to confection and pack such products on its behalf on terms
equal to
those offered by any third party.
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3.
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Such
exclusive right as is defined above shall remain in force under
the
lifetime of the Sale and Purchase Agreement, and is subject to
minimum
purchases as defined in Appendix 1.1 to this Agreement.
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4.
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This
Addendum shall be interpreted as an integral part of the Sale and
Purchase
Agreement, and rules for interpretation, termination, resolving
of
conflicts as defined in the Sale and Purchase Agreement shall also
apply
to this Addendum.
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Oslo/Irvine
………………………………………..
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Med-Eq
AS
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Amerikal
Nutraceutical Corp.
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................................................
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...................................................
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