designates portions of this document that have been omitted pursuant to a request for confidential treatment filed separately with the Commission PRIVATE LABEL SUPPLY AGREEMENT AND STRATEGIC ALLIANCE
EXHIBIT
10.2
[*]
designates
portions of this document that have been omitted pursuant to a
request
for
confidential treatment filed separately with the
Commission
AND
STRATEGIC ALLIANCE
This
Private
Label Supply Agreement
and
Strategic Alliance (“Agreement”),
dated
August
25, 2005
(“Effective Date”),
is
entered into by NutraCea,
a
California corporation (“NUTRA”), and ITV Global, a Nevada corporation
(“ITV”).
Recitals
A. NUTRA
is
engaged in the business of producing and selling various types of nutritional
products.
B. ITV
is
engaged in the business of marketing and selling various types of products
via
Direct Response advertising.
C. ITV
and
NUTRA desire that ITV purchase from NUTRA, and NUTRA sell to ITV, upon and
subject to the terms and conditions set forth in this Agreement, certain
products mentioned herein.
D. ITV
and
NUTRA desire that ITV exclusively market and distribute world-wide certain
products labeled and marketed as the “Xxxx Xxxxx” collection, as described
herein.
Agreement
Whereas,
the parties agree and understand that this Agreement
shall
supersede any and all prior written or oral agreements previously entered
into;
In
consideration of the foregoing recitals and the mutual covenants set forth
in
this Agreement, ITV and NUTRA agree as follows:
1. Definitions. As
used in this
Agreement, the following terms shall have the following meanings:
1.1 Affiliate. “Affiliate”,
when used
with reference to a specified Person, shall mean (a) the natural person in
ultimate control of such Person; and (b) any Person directly or indirectly
controlling, controlled by or under common control with such
Person.
1.2 Aggregate
Units. Aggregate
units shall mean a combination of all the Products mentioned
herein.
1.3 Contract
Quarter. “Contract
Quarter” shall
mean each
three (3)
month
period beginning on October 1 and ending on December 31, each three (3)
month
period beginning on January 1 and ending on March 31, each three (3)
month
period beginning on April 1 and ending on June 30, and each three
(3)
month
period beginning on July
1 and
ending on September 30.
1.4 Contract
Quarter Minimum. “Contract
Quarter
Minimum” shall have the meaning specified in Section 2.6.
1.5 Contract
Year. “Contract
Year”
shall mean each twelve month period beginning on Effective Date and ending
on 12
months from the Effective Date .
1.6 Direct
Response Marketing. Shall
mean any and all
Product advertising existing now or developed for the Product line during the
term of this Agreement, including but not limited to infomercials, radio
advertisements, print advertisement, package inserts, network marketing, insert
programs and internet marketing.
1.7 Force
Majeure Event. “Force
Majeure Event”
shall have the meaning specified in Section 12 below.
1.8 Initial
Order. “Initial
Order” shall
have the meaning specified in Section 2.6.
1.9 ITV
Marks. “ITV
Marks” shall mean
all trademarks and logos owned or claimed by ITV.
1.10
Minimum
Quantity. “Minimum
Quantity” shall
have the meaning set forth in Section 2.6.
1.11
Non-Conforming
Product. Shall
mean any product
that does not meet ordinary reasonable merchantable standards. By way of example
but not limited to, Non-Conforming products shall mean incorrect amount of
product per bottle, label incorrectly placed on bottle, improper seal, incorrect
formula, no accompanying certificate of analysis.
1.12
NUTRA
Marks. “NUTRA
Marks” shall mean
all trademarks, service marks, and other marks or logos owned or claimed by
NUTRA. The parties agree that NUTRA owns and shall retain all right, title
and
interest in the NUTRA Marks, including without limitation the “Xxxx Xxxxx”
trademark and the NutraCea logos, including without limitation the Caduceus
logo.
2
1.13
Person. “Person”
shall
mean any
individual, partnership, joint venture, corporation, trust, unincorporated
organization or other entity.
1.14
Products. “Products”
shall
mean
only those products from the “Xxxx Xxxxx” collection listed on Exhibit
A
attached
to this Agreement. “Products” shall not include similar or identical products or
product formulations, sold and marketed by Nutra or any third parties under
different names or labels.
1.15
Product
Cost. Product
cost shall mean the total cost to manufacture, assemble, and prepare each
product for market. Such cost shall include, but not be limited to, costs of
encapsulating, bottling and blending the raw materials, costs of packaging
and
the other direct and actual costs to NUTRA of manufacturing, assembling, and
preparing the Products for market. Product Cost shall be determined as of the
date of the applicable purchase order for the Product. The Product Cost for
SRB
shall be the lowest wholesale price at which the SRB is commercially sold by
NUTRA at any place in the United States of America.
1.16
SRB.
“SRB” shall mean stabilized rice bran derivatives.
1.17
Transferred
Marks. Transferred
Marks means the tradenames “Flex Protex” and “Rice ‘N’ Shine.”
2. Purchase
and Sale of Products.
2.1
Sale
of Products by NUTRA. During
the term of this
Agreement, NUTRA will exclusively, subject to Sections 2.6 and 3 below, sell
to
ITV, upon and subject to the terms and conditions set forth in this Agreement,
such quantities of Products as ITV may order from time to time.
2.2
Packaging;
Labels. The
Products to be
purchased and sold under this Agreement will be packaged in such packaging
and
will bear such ITV Marks and NUTRA Marks as is mutually agreed upon by the
parties. NUTRA agrees to private label certain Products exclusively for
ITV.
ITV
shall be responsible for all costs and expenses relating to the creation and
printing of the labels for the Products and all costs and expenses incurred
to
affix the labels to the Products.
2.3
Production. ITV
reserves the right to
reject any Non-Conforming
Product
from the
manufacturer
selected
by the parties
pursuant
to Section 2.4
and
shall notify both NUTRA and the manufacturer of any such defects.
ITV will
notify NUTRA of such as soon as reasonably possible. The
parties shall instruct such manufacturer that all
shipments
of
Product must have an accompanying certificate of analysis. NUTRA shall provide
the manufacturer with a certificate of analysis for its SRB for each shipment
to
the manufacturer.
2.4
Fulfillment
of Product. NUTRA
shall contract with one or more third party manufacturer(s) to manufacture,
assemble, package, and label the Products. The manufacturer shall be a
company
selected
in writing by NUTRA.
The
manufacturer must
be
able to
supply Product of at least equal quality to the Product currently
supplied by NUTRA. The manufacturer
shall be
obligated to obtain the
“RiSolubles” and other SRB derivatives from NUTRA, and shall utilize
the same
Product formulations
and raw
material sources of supply as currently utilized by NUTRA, without variations,
except to the extent expressly approved by NUTRA in advance and in writing.
Such
manufacturer shall contract directly with NUTRA to provide the Product and
shall
ship the Product to ITV in accordance with all ITV purchase orders to NUTRA
issued pursuant to this Agreement. ITV shall not place orders directly with
the
manufacturer. ITV shall enter into a written agreement with the manufacturer
to
guaranty payment for all Product produced pursuant to the manufacturing
agreement and such guaranty shall be the sole recourse
of the manufacturer in the event of a payment default under the manufacturing
agreement. The current and future manufacturer must accept ITV as the sole
source of payment under the manufacturing agreement and must agree to be paid
for each shipment [*] following shipment of the Product order. During the term
of this Agreement the parties agree to evaluate alternate manufacturing options,
subject to approval by NUTRA in its sole discretion. If, at any time in the
future, NUTRA agrees to utilize a manufacturer approved by ITV and that
manufacturer does not agree to accept ITV as the sole source of payment under
the manufacturing agreement, ITV shall pay for the Product on alternate payment
terms that protect NUTRA from liability for the manufacturing costs.
All
manufacturers must enter
into a
nondisclosure and non-circumvention agreement in a form acceptable to NUTRA
prior to obtaining
proprietary Product Information, submitting bids, or commencement
of any manufacturing activities.
3
2.5 Order
Procedure. ITV’s
orders for
quantities of Products purchased under this Agreement will be placed by ITV
by
means of purchase orders delivered to NUTRA, each of which shall reference
this
Agreement. Each such purchase order must specify a shipment date that is not
less than forty five (45) days from the date of such purchase order. NUTRA
shall
have no responsibility for any delays or failures resulting from
the
manufacturer approved
by ITV
pursuant
to Section 2.4. NUTRA
agrees to fulfill all purchase orders for the SRB within six (6) weeks of
receiving the purchase order. ITV
may
issue a standing order to NUTRA,
and
each
shipment or installment shall be severable
and a
distinct purchase order from each other. Each purchase order form shall specify
the Product name, formulation, number of Product units, order date and price
and
shall comply with the terms and conditions of this Agreement, and the terms
hereof shall supersede any contrary terms contained in any purchase order.
All
purchase orders shall be in a form and content specifically approved in advance
by NUTRA. Except as provided or permitted herein, the purchase order shall
not
include any additional or pre-printed terms or conditions.
2.6 Minimum
Quantity.
[*].
2.7 Cancellation. NUTRA
shall not be obligated to accept, and ITV shall not be entitled to request
any
delays in delivery or to cancel any
purchase
order
placed by ITV; provided, that if a governmental agency notifies ITV in writing
that it objects to ITV’s performance of its obligations under this Agreement,
then ITV shall be entitled to cancel any open purchase orders upon delivery
to
NUTRA of written proof of the notice of governmental objection.
Notwithstanding the foregoing, ITV shall make all outstanding payments for
amounts due to the manufacturer arising from any cancelled order.
4
2.8 Shipments.
All
Products purchased by ITV under this Agreement will be shipped FOB the
manufacturer’s
designated facility and risk of loss will pass to ITV upon shipment. ITV will
pay all shipping costs.
2.9 Invoicing;
Terms of Payment.
[*]
3.
[*]
4. Prices.
[*]
4.2 Raw
Materials.
NUTRA
agrees that if the cost of the SRB becomes less expensive to NUTRA then it
will
pass those savings on to ITV and if the cost of the SRB becomes more expensive
then it will notify ITV in writing, within thirty (30) days (or as soon as
reasonably available, if less) prior to the increase of the costs to ITV, all
in
accordance with this Agreement.
5. Obligations
of ITV.
5.1 Purchase
Forecasts.
ITV
will use its best efforts to deliver to NUTRA a written forecast setting forth
ITV’s good faith estimate of ITV’s anticipated purchases of Products for that
Contract Quarter, by month on a Product-by-Product basis. Such forecasts will
not be binding on ITV, but ITV will use its best efforts to ensure the accuracy
of the same.
5.2 Compliance
with Law.
ITV
will comply with all applicable laws, statutes and regulations relating to
the
marketing, distribution and sale of Products purchased by it under this
Agreement. NUTRA will also comply with all applicable laws, statutes and
regulations relating to the manufacturing of nutritional products and dietary
supplements and abide by good
manufacturing practices.
5.3 Marketing
and Sales Efforts.
Throughout the term of this Agreement, ITV shall use its best efforts to market,
distribute and sell Products bearing one or more of ITV’s and NUTRA’s Marks,
including but not limited to Direct Response Marketing. Upon signing this
Agreement and until the termination of this Agreement, NUTRA shall maintain
on
its website (xxx.xxxxxxxx.xxx)
a link
to the ITV website and NUTRA shall not sell any Product other than by directing
customers to the ITV website.
5.4 Up-Selling. ITV
agrees to up-sell the Products first before attempting to up-sell any non NUTRA
products. ITV will not be prohibited from up-selling any of its products with
NUTRA Products.
6. Issuance
of Securities.
NUTRA
agrees to issue to ITV or its designees an option to acquire up to two hundred
and fifty thousand (250,000) shares of NUTRA restricted common stock at the
average
of the “bid” and “ask”
market
price
on the
Effective Date,
as
follows: options to acquire and vest fifty thousand (50,000) shares upon payment
in full of the first Contract Quarter Minimum, and fifty thousand (50,000)
for
each Contract Quarter during the term of this Agreement in which ITV
purchases
and pays
in full in accordance with the terms and conditions of this
Agreement,
the
Contract
Quarter
Minimum, until the aggregate total of options granted under this Section equals
two hundred fifty thousand (250,000). ITV shall have a thirty (30) day right
after the end of each Contract Quarter during the term of this Agreement to
cure
any shortfall in failing to purchase the Contract Quarter Minimum for the prior
Contract Quarter; and if ITV cures any such shortfall it shall vest in the
options. NUTRA shall have no further obligations under this Section to grant
options to ITV upon ITV receiving options to purchase an aggregate total of
two
hundred fifty thousand (250,000) shares of NUTRA restricted common stock. If
necessary, the parties agree to amend this Section of the Agreement in order
to
comply with all applicable state and federal securities law. In the event of
a
breach by ITV of any monetary obligation hereunder, any and all rights of ITV
to
any options hereunder that have not yet vested shall immediately terminate
and
be of no further force or effect. All options issued under this Section shall
include a lock-up restriction, prohibiting the sale of the underlying security
until December 31, 2007, except in the event of an acquisition of all or
substantially all of the assets of NUTRA to an unrelated third party, at which
time the lock-up shall terminate, and all options will vest and be available
for
exercise and sale at the time the acquisition is completed.
5
7. INTELLECTUAL
PROPERTY.
7.1 Marks.
NUTRA
will not use any ITV Xxxx in connection with the marketing, distribution or
sale
of any of the Products unless expressly authorized in writing by ITV.
ITV
will
not use any NUTRA Marks in connection with the marketing, distribution or sale
of any Products unless expressly authorized hereunder or in a separate writing
by NUTRA. All Product names listed on Exhibit A are NUTRA Marks; provided,
that
after five (5) Contract Quarters, and if ITV has not breached any of its
monetary or other obligations hereunder, NUTRA agrees to convey all of its
right
and interest in the Transferred Marks to ITV and such marks shall thereafter
be
ITV Marks.
7.2 Labels
and package design.
All
private labels and packaging (excluding any NUTRA Marks) developed by NUTRA
and
exclusively created for ITV shall be “work for hire” and owned by ITV.
7.3 Infomercial. The
entire editorial, visual, audio and graphic content of all advertisements and
promotional materials developed by ITV in connection with the promotion,
marketing and distribution of the Product(s), including without limitation,
(i)
the programs and the performances recorded therein, the promotional segments,
and any other marketing materials prepared in connection with the Product(s),
(ii) all raw footage shot in the course of producing the programs, (iii) all
trademarks developed for ITV or its affiliates, (iv) all musical compositions
included in the programs, and shall be and remain the sole property of ITV,
(v)
and any developed web domains for the Products (“ITV Intellectual Property”).
NUTRA shall not acquire any right, title or interest in the ITV Intellectual
Property by virtue of this Agreement or otherwise. NUTRA hereby assigns and
agrees to assign to ITV all of NUTRA’s right, title and interest in the ITV
Intellectual Property mentioned in this Section 7.3 and Section 7.2 above.
NUTRA
shall not in any way or at any time dispute or attack the validity or harm
or
contest the rights of ITV in or to any of the ITV Intellectual Property. Any
unauthorized use of any of the ITV Intellectual Property by NUTRA shall be
deemed an infringement of the rights of ITV therein.
6
7.4 NUTRA
Intellectual Property.
During
the term of this Agreement, NUTRA hereby grants to ITV a world wide,
royalty-free license to use all NUTRA trade marks, copyrights, service marks,
and logos provided by NUTRA for the Products (specifically not including any
trade secrets, patented items, or software items) solely for use for the
Products and all proprietary marks of NUTRA solely for use for the Products
in
conjunction with ITV’s performance under this Agreement. ITV shall have no right
to use any other copyrighted materials or proprietary marks of NUTRA. This
license or rights granted per this Section 7.4 shall not be assignable unless
agreed upon by NUTRA.
7.5 Confidentiality.
All
customer lists, price lists, written and unwritten marketing plans, techniques,
methods and data, sales and transaction data, and other information designated
or deemed either by NUTRA or ITV as being confidential or a trade secret, shall
constitute confidential information of or NUTRA or ITV, as applicable
(“Confidential
Information”).
NUTRA
and ITV shall hold all Confidential Information in the strictest confidence
and
shall protect all Confidential Information with the same degree of care that
NUTRA and ITV exercises with respect to its own proprietary information. Without
the prior written consent of the other, NUTRA or ITV shall not use, disclose,
divulge or otherwise disseminate any Confidential Information to any person
or
entity, except for each party’s attorneys and such other professionals as the
companies may retain in order for it to enforce the provisions of this
Agreement. Notwithstanding the foregoing NUTRA and ITV shall have no obligation
with respect to any Confidential Information which (i) is or becomes within
the
public domain through no act of NUTRA or ITV in breach of this Agreement, (ii)
was lawfully in the possession of NUTRA or ITV without any restriction on use
or
disclosure prior to its disclosure hereunder, (iii) is lawfully received from
another source subsequent to the date of this Agreement without any restriction
on use or disclosure, or (iv) is required to be disclosed by order of any court
of competent jurisdiction or other government authority (provided in such latter
case, however, that each company shall timely inform the other of all such
legal
or governmental proceedings so that the company may attempt by appropriate
legal
means to limit such disclosure, and NUTRA and ITV shall further use its best
efforts to limit the disclosure and maintain confidentiality to the maximum
extent possible).
7.6 Non-Circumvention.
During
the term of this Agreement and for a period of one (1) year thereafter, ITV
shall not, directly or indirectly, transact business directly with any
manufacturer, supplier or producer of the Products that ITV becomes aware of
as
a result of this Agreement without NUTRA’s prior written consent. The provisions
of this Section 7.6 shall be deemed to consist of a series of separate covenants
for each Product. The parties agree that the one (1) year restricted period
and
the proscribed activities during such one (1) year period are reasonable in
light of the relevant circumstances as of the date of this Agreement. If any
such period or activity are adjudged unreasonable in any final decision of
a
judge or arbitrator or administrative agency of competent jurisdiction, then
the
period or activity shall be reduced to the extent that they are determined
to be
unreasonable, so that this covenant may be enforced with respect to the maximum
amount of such activities and during the maximum time period as is adjudged
to
be reasonable.
7
8. Warranty,
Etc.
8.1 Limited
Warranty.
NUTRA
warrants that all Product
ingredients
supplied
by NUTRA
are
generally recognized as safe for human consumption as formulated. NUTRA further
warrants that it is and has complied with all relevant laws, rules
and
regulations promulgated by the Food and Drug Administration.
8.2 Remedies
for Breach of Warranty.
In the
event of a breach of the warranty set forth in Section 8.1 above, NUTRA shall
be
obligated to either, in ITV’s sole discretion, (i) replace the Non-Conforming
Products; or (ii) refund the price paid by ITV for the Non-Conforming
Products.
8.3 Disclaimer
of Warranty.
NUTRA
MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE PERFORMANCE OF THE PRODUCTS,
EXCEPT AS SET FORTH IN SECTION 8.1 ABOVE. ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED.
8.4 Consequential
Damages Waiver.
IN NO
EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE FOR ANY TYPE OF INCIDENTAL,
PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO,
LOST
REVENUE, OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
ARISING OUT OF OR RELATING TO THE PRODUCTS, THIS AGREEMENT, OR ANY PERFORMANCE
OR NON-PERFORMANCE BY EITHER PARTY UNDER THIS AGREEMENT, WHETHER ARISING UNDER
A
THEORY OF BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY OR OTHERWISE.
8.5 Limitation
of Liability.
In no
event will NUTRA have any liability or obligation to ITV arising out of or
related to the Products, this Agreement or the performance or non-performance
of
NUTRA under this Agreement, in an amount greater than the aggregate amount
actually paid by ITV to NUTRA for the Products with respect to which such
alleged liability or obligation relates.
8.6 Insurance.
For so
long as ITV continues to sell the Product(s), NUTRA shall maintain, at its
own
expense, a blanket liability insurance coverage, including, but not limited
to,
coverage for product liability for the Product in an amount not less than two
million dollars ($2,000,000) in the aggregate and up to one million dollars
($1,000,000) per incident. ITV shall be named as an additional insured on any
such policies. All such insurance shall be placed with one or more carriers,
which are rated "A" or better by A. M. Best's rating service. NUTRA shall
deliver to ITV evidence of (i) the procurement of such insurance including
evidence showing ITV has been named an additional insured in a form reasonably
acceptable to ITV within fifteen (15) days of such procurement and (ii)
maintenance of such insurance in a form reasonably acceptable to ITV at each
renewal period and at such times as are requested by ITV. ITV shall be provided
no less than thirty (30) days prior written notice from NUTRA and its insurer
of
cancellation of such policy. The costs associated with the NUTRA Insurance
shall
be reimbursed by ITV within
five
(5)
business
days of presentment of the invoice from the insurance company.
8
9. Indemnification.
9.1 Indemnification
by NUTRA.
NUTRA
will defend, indemnify and hold ITV and its Affiliates, and their respective
officers, directors and employees (the “Indemnified Parties”) harmless from and
against, and will reimburse the Indemnified Parties with respect to, any and
all
claims, actions, demands, losses damages, liabilities, costs and expenses,
including without limitation attorneys’ fees, which the Indemnified Parties, or
any of them, may suffer or incur arising, directly or indirectly, out of (a)
the
allegation by any third Person that the Products infringe upon any United States
patent; or
(b)
any
claim brought against ITV by a state or federal governmental agency arising
out
of its conduct as permitted and contemplated under this Agreement, except in
each case to the extent arising from the gross negligence or intentional
misconduct of ITV or its employees or agents.
9.2 Indemnification
by ITV.
ITV
will defend, indemnify and hold NUTRA, its Affiliates, and their respective
officers, directors and employees (“NUTRA Indemnified Parties”) harmless from
and against, and will reimburse the NUTRA Indemnified Parties with respect
to
any and all claims, actions, demands, losses damages, liabilities, costs and
expenses, including without limitation, attorneys fees, which the NUTRA
Indemnified Parties, or any of them may suffer or incur arising, directly or
indirectly, out of ITV’s breach of any of its obligations under this Agreement,
except to the extent arising from the gross negligence or intentional misconduct
of NUTRA or its employees or agents.
9.3 Indemnification
Procedure.
Any
party claiming indemnification under this Agreement (“Indemnified Party”) shall
provide the other party (the “Indemnifying Party) prompt notice in writing upon
becoming aware of any action, suit, proceeding, claim, demand, judgment or
assessment with respect to which a right to indemnification is claimed under
Section 9.1 or 9.2 (a “Claim”). The Indemnifying Party shall thereupon have the
right to assume control of the defense and/or settlement of the Claim, provided
that (a) the Indemnifying Party promptly undertakes such defense and/or
settlement, and thereafter pursues the same with reasonable diligence; (b)
the
Indemnifying Party keeps the Indemnified Party reasonably informed of the
progress of such defense and/or settlement; and (c) the Indemnifying Party
does
not compromise or settle the Claim without the Indemnified Party’s prior written
consent, which consent will not be unreasonably withheld, conditioned or
delayed. The Indemnified Party may participate in the defense of a Claim at
its
own expense, however, Indemnified Party’s participation shall be solely as an
observer.
9
10. Relationship
of Parties.
This
Agreement does not constitute ITV as a partner, joint venturer, agent or legal
representative of NUTRA, or NUTRA as a partner, joint venturer, agent or legal
representative of ITV for any purpose whatsoever. Neither party grants any
express or implied right or authority to the other party to assume or create
any
obligation or responsibility on behalf of or in the name of the other party,
or
to bind the other party in any matter or thing whatsoever.
11. Termination.
11.1
Termination
by Either Party.
NUTRA
and ITV shall each have the right, at its option, to terminate this Agreement
as
follows:
(a) By
giving
written notice to the other party, effective immediately, in the event that
such
other party shall be adjudicated bankrupt or shall petition for or consent
to
any relief under any bankruptcy, reorganization, receivership, liquidation,
compromise, or any moratorium statute, whether now or hereafter in effect,
or
shall make an assignment for the benefit of its creditors, or shall petition
for
the appointment of a receiver, liquidator, trustee, or custodian for all or
a
substantial part of its assets, or if a receiver, liquidator, trustee or
custodian is appointed for all or a substantial part of its assets and is not
discharged within thirty (30) days after the date of such appointment;
or
(b) Upon
any
default in the performance of or breach of any agreement, covenant, obligation
or undertaking of the other party made in this Agreement (unless caused by
a
Force Majeure Event, which shall be governed by Section 12 below, or unless
the
default is a monetary default by ITV, which shall be governed by Section 11.2
below), if such default or breach is not remedied to the reasonable satisfaction
of the party giving notice of termination within thirty (30) days after written
notice of the default or breach has been given to the defaulting party by the
other party.
The
notice of election to terminate this Agreement shall state the grounds upon
which termination is based.
11.2
Termination
Based on Monetary Default by ITV.
Following written notice from NUTRA of a monetary default, ITV’s opportunity to
cure such default will be seven (7) calendar days from receipt of notice. If
such monetary default is not cured within such time, then NUTRA shall have
the
right to immediately terminate this Agreement.
11.3
Survival.
The
provisions of Sections 2.9, 7.5, 7.6, 8 and 9, this Section 11.3, 11.4, and
Section 13 shall survive the expiration or termination of this Agreement for
any
reason whatsoever. Further, expiration or termination of this Agreement for
any
reason whatsoever shall not relieve or release either party hereto from any
liabilities or obligations that it has incurred prior to the date of such
expiration or termination.
10
11.4
Effect
of Termination.
Upon
termination of this Agreement, ITV shall cease marketing of the Products
immediately. ITV shall return to NUTRA all NUTRA Confidential Information in
ITV’s possession on the date of termination. ITV shall have no further rights to
the Products upon termination of this Agreement and ITV shall immediately cease
airing any and all infomercials or commercials relating to or referencing the
Products. In
the
event of a breach by ITV of any of its obligations under this Agreement, which
breach is not cured during any applicable cure period hereunder, all assignments
by NUTRA pursuant to Section 7 herein shall be null and void and of no further
force or effect.
The
parties agree that upon termination for any reason other than a default or
breach by ITV, NUTRA will sell to ITV any Product that ITV reasonably requires
to fulfill continuity and re-orders from ITV’s customers. NUTRA will not be
obligated to sell any Product to ITV following any termination due to a default
or breach by ITV hereunder.
12. Force
Majeure.
If
either
party is prevented from performing, or delayed in the performance of, any of
its
obligations under this Agreement, except the payment of money, because of an
event beyond its reasonable control, such as, but not limited to, inability
to
obtain materials or labor, any act of God, riot, war, civil unrest, flood,
fire
or earthquake (but excluding failure caused by a party’s financial condition or
negligence), the affected party shall be excused from performance (other than
the payment of money due hereunder) for the duration of the event (a “Force
Majeure Event”); provided that the party whose performance has been impaired by
the Force Majeure Event (a) promptly notifies the other party of the existence
and nature of the Force Majeure Event and its anticipated effect on the
performance of the notifying party under this Agreement; (b) promptly undertakes
and thereafter diligently pursues any commercially reasonable action necessary
to remove the effect of the Force Majeure Event, to the extent that the Force
Majeure Event in question is of a nature such that its effects may be remedied
by commercially reasonable action; and (c) keeps the other party informed during
the duration of such Force Majeure Event of all facts pertaining thereto,
including but not limited to the progress of the notifying party in remedying
the same, if applicable.
13. Miscellaneous.
13. Arbitration.
In the
event of any dispute or controversy arising out of or relating to this
Agreement, the parties hereto agree to submit such dispute or controversy to
binding arbitration. The sole arbitrator shall be selected from the list of
arbitrators supplied by the American Arbitration Association following written
request by any party hereto. If the parties hereto cannot agree upon an
arbitrator within thirty (30) days following receipt of the list of arbitrators
by all parties to such arbitration, then either party may request, in writing,
that the American Arbitration Association appoint an arbitrator within ten
(10)
days following receipt of such request (the “Arbitrator”). If
the
arbitration is initiated by ITV, the
arbitration shall take place in Sacramento County, California.
If the
arbitration is initiated by NUTRA, the arbitration shall take place in Boston,
Massachusetts. Subject to the foregoing, the arbitration shall be
held
at a
place and time mutually agreeable to the parties or if no such agreement is
reached within ten (10) days following notice from the Arbitrator, at a place
and time determined by the Arbitrator. Such arbitration shall be conducted
in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect. The parties hereto agree that all actions or
proceedings arising in connection with this Agreement shall be arbitrated
exclusively in Sacramento County, California
or
Boston Massachusetts, as applicable.
The
aforementioned
choice
of venue is intended by the parties to be mandatory and not permissive in
nature, thereby precluding the possibility of litigation or arbitration between
the parties with respect to or arising out of this Agreement in any jurisdiction
other than that specified in this Section. Each party hereby waives any right
it
may have to assert the doctrine of forum non conveniens or similar doctrine
or
to object to venue with respect to any proceeding brought in accordance with
this Section, and stipulates that the Arbitrator shall have in personam
jurisdiction and venue over each of them for the purpose of resolving any
dispute, controversy, or proceeding arising out of or related to this Agreement.
The decision of the Arbitrator shall be final and binding on all the parties
to
the arbitration, shall be non-appealable and may be enforced by any court of
competent jurisdiction. In addition to attorneys’ fees as provided herein, the
prevailing party shall be entitled to recover from the non-prevailing party
reasonable costs and expenses. The costs and fees of the arbitration shall
be
paid by the non-prevailing party. The Arbitrator may grant any remedy that
the
Arbitrator deems appropriate including, without limitation, injunctive relief
or
specific performance. Prior to the appointment of the Arbitrator, any party
may
seek a temporary restraining order or a preliminary injunction that shall be
effective until a final decision is rendered by the Arbitrator.
11
13.2 Assignment.
This
Agreement may not be assigned by either party without the prior written consent
of the other party; provided, however, that this Agreement may be assigned
by
NUTRA, without the prior written consent of ITV, to any Person which acquires
all or substantially all of the assets of NUTRA.
13.3 Applicable
Law.
This
Agreement shall be construed and interpreted in accordance with the internal
laws of the State of California, notwithstanding its conflict of law
provisions.
13.4 Entire
Agreement.
This
Agreement embodies the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof. No representation, promise,
inducement, statement or intention has been made by any party hereof that is
not
embodied herein, and no party shall be bound or liable for any alleged
representation, promise, inducement or statement not so set forth herein. Terms
and conditions set forth in any of ITV’s purchase orders, or any other forms or
documents of ITV, which are inconsistent with, or in addition to, the terms
and
conditions set forth in this Agreement, are hereby objected to and rejected
in
their entirety, regardless of when received, without further action or
notification by NUTRA, and shall not be considered binding on NUTRA unless
specifically agreed to in writing by it.
13.5 Severability.
If any
provision of this Agreement or the application of any such provision to any
party or any circumstances shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the remainder of
this Agreement or the application of such provision to such party or
circumstances other than those to which it is so determined to be invalid and
unenforceable, shall not be affected thereby, and each provision hereof shall
be
validated and shall be enforced to the fullest extent permitted by
law.
12
13.6 Waivers;
Modification.
No
party hereto shall be deemed as a consequence of any act, delay, failure,
omission, forbearance or other indulgences granted from time to time by any
other party hereto: (a) to have waived, or to be estopped from exercising,
any
of its rights or remedies under this Agreement; or (b) to have modified,
changed, amended, terminated, rescinded, or superseded any of the terms of
this
Agreement, unless such waiver, modification, amendment, change, termination,
rescission, or supersession is express, in writing and signed by the party
that
is to be bound by such waiver, modification, amendment, change, termination,
rescission or supersession. No single or partial exercise by any party hereto
of
any right of remedy will preclude any other or further exercise thereof or
preclude the exercise of any other right or remedy, and a waiver expressly
made
in writing on one occasion will be effective only in that specific instance
and
only for the precise purpose for which given, and will not be construed as
a
consent to or a waiver of any right or remedy on any future occasion or a waiver
of any right or remedy against any other party.
13.7 Attorneys’
Fees.
In the
event that any of the parties hereto (or any successor thereto) resorts to
legal
action, including arbitration, in order to enforce, defend or interpret any
of
the terms or the provisions of this Agreement, the prevailing party (as
determined by the court, arbitrator or other authority before which such suit
or
proceeding is validly commenced hereunder) shall be entitled to receive, in
addition to such other remedies as shall be awarded to it in such legal action,
reimbursement from the non-prevailing party or parties for all reasonable
attorneys’ fees and all other costs incurred in commencing or defending such
action. In addition, the prevailing party shall be entitled to recover from
the
non-prevailing party or parties post-judgment reasonable attorneys’ fees
incurred by the prevailing party in enforcing a judgment against the
non-prevailing party or parties. Notwithstanding anything in this Agreement
to
the contrary, the provisions of the preceding sentence are intended to be
severable from the balance of this Agreement, shall survive any judgment
rendered in connection with the aforesaid legal action, and shall not be merged
into any such judgment.
13.8 Notice.
All
notices, requests, demands, and other communications required to or permitted
to
be given under this Agreement shall be in writing and shall be conclusively
deemed to have been duly given (a) when hand delivered to the other party;
or
(b) when received when sent by facsimile at the address and number set forth
below (provided, however, that notices given by facsimile shall not be effective
unless the receiving party delivers a written confirmation of receipt for such
notice either by facsimile or any other method permitted under this Section;
additionally, any notice given by facsimile shall be deemed received on the
next
business day if such notice is received after 5:00 p.m. (recipient’s time) or on
a nonbusiness day); or (c) three business days after the same have been
deposited in a United States post office with first class or certified mail
return receipt requested postage prepaid and addressed to the parties as set
forth below; or (d) the next business day after the same have been deposited
with a national overnight delivery service reasonably approved by the parties
(Federal Express and DHL WorldWide Express being deemed approved by the
parties), postage prepaid, addressed to the parties as set forth below with
next-business-day delivery guaranteed, provided that the sending party receives
a confirmation of delivery from the delivery service provider. Each party shall
make an ordinary, good faith effort to ensure that it will accept or receive
notices that are given in accordance with this Section, and that any person
to
be given notice actually receives such notice. A party may change the address
of
such party given below for purposes of this Section by giving the other party
written notice of the new address in the manner set forth
above.
13
|
If
to NUTRA to:
|
|
1261
Hawk’s Xxxxxx Xxxxx
|
|
Xx
Xxxxxx Xxxxx, XX 00000
|
|
Attention:
Xxxxxxx Xxxxx
|
|
If
to ITV to:
|
|
ITV
Global Inc.
|
|
X.X.
Xxx 0000
|
|
Xxxxxxx,
Xx 00000
|
|
Attention:
Xxxxxxxxxxx Xxxx
|
13.9 Headings.
The
captions and other headings contained in this Agreement are for convenience
only
and shall not be considered a part of or effect the construction and
interpretation of any provision of this Agreement.
13.10 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
document.
13.11
Term.
Subject
to earlier termination as provided below, the term of this Agreement will
commence on the date of this Agreement and shall continue two years (2) from
the
above date. This agreement will automatically renew for an additional twelve
(12) month term following the last day of this Agreement.
13.12 General
Interpretation.
The
terms of this Agreement have been negotiated by the parties hereto and the
language used in this Agreement shall be deemed to be the language chosen by
the
parties hereto to express their mutual intent. This Agreement shall be construed
without regard to any presumption or rule requiring construction against the
party causing such instrument or any portion thereof to be drafted, or in favor
of the party receiving a particular benefit under the Agreement. No rule of
strict construction will be applied against any person.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective
as of the day and year first written above.
14
|
NUTRACEA®,
|
ITV
GLOBAL, INC.
|
||||
|
A
California Corporation
|
A
Nevada Corporation
|
||||
|
By:
|
/s/
Xxxxxxx X. Xxxxx
|
By:
|
/s/
Xxxxxxxxxxx Xxxx
|
||
|
Its:
|
President
|
Its:
|
President
|
||
15
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Wafers®
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16
