EXHIBIT 2.2
LICENSE, MANUFACTURE, AND DISTRIBUTION AGREEMENT
THIS LICENSE, MANUFACTURE AND DISTRIBUTION AGREEMENT ("Agreement") is
made as of the 31st day of December, 2003, by and between SCOLR, INC., a
Delaware corporation whose principal place of business is located at 0000 000xx
Xxxxxx XX, Xxxxxxxx, XX 00000 ("SCOLR"), and Nutraceutix, Inc., a Washington
corporation whose principal place of business is located at 0000 000xx Xxxxxx
XX, Xxxxxxx, XX 00000-0000 ("Nutraceutix").
WHEREAS, SCOLR is the owner of valuable Intellectual Property Rights,
as defined below, relating to the design and formulation of controlled delivery
technology as further identified in EXHIBIT A hereto ("CDT");
WHEREAS, Nutraceutix manufactures and distributes vitamins and dietary
and nutritional supplements for various third party customers;
WHEREAS, SCOLR and Nutraceutix have entered into an Asset Purchase
Agreement of even date herewith (the "Asset Purchase Agreement"), pursuant to
which the parties have agreed to enter into this Agreement regarding the
manufacture and distribution of products which incorporate SCOLR's CDT
technology and are identified on EXHIBIT B-1 attached to this Agreement (each a
"Product" and, collectively, the "Products").
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions contained herein, the parties hereby agree as follows:
1. Term. The term of this Agreement shall be for a period of four (4)
years (the "Initial Term") commencing on the date hereof (the "Effective Date")
and continuing until the fourth anniversary of the Effective Date. The Agreement
may be renewed for additional periods (each, a "Renewal Term" and collectively,
the "Renewal Terms") upon agreement of the parties (the Initial Term and the
Renewal Term(s), if any, shall hereinafter be collectively referred to as, the
"Term") upon the same terms and conditions in force and effect hereunder at the
time of each such extension, or as otherwise agreed to in writing by the
parties, at least thirty (30) days prior to the termination of the then current
term.
2. License.
a) SCOLR grants to Nutraceutix and Nutraceutix accepts a
limited license to use CDT to manufacture, package, ship, distribute
and sell the Products to Customers, as defined below, in the United
States in accordance with and for the Term of this Agreement (the
"License"). The License also extends to the sale of Products to
Springfield Nutraceutics BV located in the Netherlands and VRI located
in Australia. Except as otherwise provided in this Agreement, the grant
of this License shall mean that no other party shall have the right,
directly or indirectly, to use CDT to manufacture, package, ship,
distribute or sell the Products, or any reasonable variation thereof,
to Customers in the United States and to the Customers in the foreign
countries set forth above, for the Term of this Agreement. Without
limiting the generality of the preceding sentence, Nutraceutix shall
have no right to manufacture the Products except as
specifically set forth on EXHIBIT B-2 without the prior written consent
of SCOLR. The License does not cover areas outside the United States
(except as provided above in Australia and Netherlands), pharmaceutical
or over-the-counter CDT product formulations.
b) Subject to the terms and conditions of this Agreement,
SCOLR hereby appoints Nutraceutix as the manufacturer and distributor
of the Products to the Customers. Any entity that purchases any Product
from Nutraceutix during the Term of this Agreement is referred to
herein as a "Customer" and collectively, as the "Customers."
c) Notwithstanding anything to the contrary contained in this
Agreement, the parties acknowledge that the relationships of SCOLR as
described on SCHEDULE 2 are deemed to precede this Agreement (the
"Preexisting Relationships"). Nutraceutix acknowledges and agrees that
any rights granted under this Agreement are subordinate and subject to
such Preexisting Relationships.
3. Royalties. In consideration of the rights and license granted
herein, Nutraceutix agrees to pay SCOLR royalties equal to ten (10%) percent of
its Net Sales of the Products ("Royalty Payments"). Net Sales shall mean the
total net sales by Nutraceutix of the Products, less deductions for: (i)
transportation charges, including insurance, sales and excise taxes and duties
paid; (ii) normal and customary trade, quantity and cash discounts allowed;
(iii) sales commissions; and (iv) allowances on account of rejection or return
by Customers. Payments hereunder shall be made quarterly in arrears not more
than forty-five (45) days following the end of the applicable quarter.
4. Marketing.
a) SCOLR Prospects. If SCOLR identifies any entity in the
United States that is not already a Customer, that is interested in
purchasing one or more of the Products ("Potential Customer") SCOLR
will work cooperatively with Nutraceutix to market and sell the
Products to the Potential Customer. In addition, Nutraceutix shall have
the first right of refusal to enter into a manufacturing agreement with
the Potential Customer to manufacture and sell the Product or Products
to the Potential Customer. If Nutraceutix is unable to enter into such
agreement with the Potential Customer within six (6) months from the
date of notification of a Potential Customer by SCOLR, then SCOLR shall
be entitled to provide the Potential Customer with the Product or
Products requested through another manufacturer. Nutraceutix agrees
that SCOLR may itself be a customer, and subject to the Nutraceutix's
right of first refusal regarding manufacture of the Products, SCOLR
retains the right to sell to Potential Customers.
b) Nutraceutix Prospects. Nutraceutix will periodically
provide SCOLR with written notice of bona fide Potential Customers
Nutraceutix is pursuing and SCOLR shall not market or sell any of the
Products, directly or indirectly, to these Potential Customers for a
period of twelve (12) months from the date of the notice from
Nutraceutix. The initial list of Potential Customers provided by
Nutraceutix to SCOLR may include some or all existing non-CDT customers
of Nutraceutix as well as other Potential Customers.
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5. Development. Subject to negotiation of acceptable fee arrangements
in its discretion, SCOLR will formulate, develop and test the Products to the
point where scale-up can take place. SCOLR will thereafter use reasonable
commercial efforts to assist Nutraceutix in the scale-up and initial batch
manufacture of each Product for sale by Nutraceutix.
6. Sale of Products. Nutraceutix will be responsible for all
manufacturing, distribution and invoicing of the Products to the Customer.
Nutraceutix shall manufacture, ship and deliver the Products in a timely manner
in accordance with the purchase orders submitted by each Customer and
Nutraceutix's obligations pursuant to Section 9 hereof. Nutraceutix agrees that
all Products purchased by every Customer shall meet the specifications mutually
agreed upon between SCOLR and Nutraceutix and accepted by Customer.
7. Confidential Information.
a) In connection with each party's responsibilities hereunder,
each party may disclose or make known to the other, and each party may
be given access to or become acquainted with, certain confidential
information not disclosed to the general public, which each party
considers proprietary and desires to maintain confidential
(collectively, "Confidential Information"). The parties hereby agree
that during the Term and at all times thereafter, neither party shall
in any manner, either directly or indirectly, divulge, disclose or
communicate to any person or firm, any of the Confidential Information
which either party may have acquired as an incident to it fulfilling
its obligations under this Agreement, the parties agreeing that such
information affects the successful and effective conduct of their
respective business and goodwill, and that any breach of the terms of
this Section is a material breach of this Agreement. The parties shall
take all reasonable measures to prevent their respective employees,
agents and representatives from disclosing the Confidential
Information. Confidential Information shall not include any
documentation, data or information that is (a) required to be disclosed
to any governmental entity, (b) already in the possession of the
receiving party at the Effective Date of this Agreement, (c)
independently learned by the receiving party, (d) rightfully received
by the receiving party from a third party having the right to make such
disclosure, or (e) publicly known or that becomes publicly known
through no wrongful act of the receiving party.
b) The parties acknowledge that the disclosure of Confidential
Information by a party to this Agreement to a governmental entity, as
required by applicable law, regulations, legal or agency order or
process, is not a breach of this Section 6. In the case of required
disclosures, the owner of the Confidential Information shall, to the
extent reasonably possible, be given notice prior to the disclosure.
8. Intellectual Property Ownership
a) Nutraceutix acknowledges and agrees that SCOLR owns all CDT,
subject to the Licenses granted to Nutraceutix under this Agreement. It
is understood that SCOLR shall remain the sole owner of CDT and that
neither the performance of this Agreement nor the use by Nutraceutix
thereof shall confer on Nutraceutix any Intellectual Property Rights
thereto.
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b) Nutraceutix agrees to cooperate with SCOLR to make certain
that third parties may not unlawfully infringe CDT or engage in any
acts of unfair competition involving any of the above. Nutraceutix
agrees to promptly notify SCOLR in writing of any actual or apparent
infringement, or unauthorized disclosure of CDT, which comes to its
attention.
c) Nutraceutix shall request of each Customer and use reasonable
commercial efforts to provide that all Products contain SCOLR trademark
and/or patent notifications, including the requested size and location
details as SCOLR may specifically provide to Nutraceutix.
d) "Intellectual Property Rights" means any and all (by whatever
terms known or designated) tangible and intangible, now known or
hereafter existing (a) rights associated with works of authorship, know
how, and data throughout the universe, including but not limited to all
exclusive exploitation rights, copyrights, neighboring rights and moral
rights; (b) trade secret rights; (c) trademarks; (d) domain names; (e)
data; (f) patents, designs, algorithms and other industrial property
rights and all improvements, modifications, and derivatives thereof;
(g) all other proprietary rights of every kind and nature throughout
the universe, however designated (including, without limitation, logos,
character rights, "rental" rights and rights to remuneration), whether
arising by operation of law, contract, license or otherwise; and (h)
all registrations, applications, reissues, reexaminations, renewals,
continuations, continuations in part, divisions, or extensions thereof,
now or hereafter in force throughout the universe.
9. Nutraceutix's Obligations.
a) Nutraceutix shall ensure that the Products, and the manufacture,
distribution, and sale thereof, comply with all applicable laws and
regulations. Without limiting the generality of the foregoing, it shall
be the sole responsibility of Nutraceutix to obtain, maintain, and be
in compliance with all licenses, permits, authorizations or product
registrations required in order to manufacture, distribute, and sell
the Products to the Customers, including, without limitation, being in
compliance with good manufacturing practice ("GMP") and obtaining any
required permits from the FDA. Nutraceutix shall provide SCOLR with the
opportunity to inspect its manufacturing facilities for the purpose of
assuring compliance with the Agreement during reasonable business hours
and upon reasonable notice. All patent and trademark search,
application, registration and maintenance fees relating to CDT shall be
the sole responsibility of SCOLR. SCOLR shall comply with all
reasonable requests for assistance by Nutraceutix in connection
therewith, including, without limitation, the furnishing of documents.
Nutraceutix will also insure that any manufacturer that it uses to
manufacture the Products in accordance with the terms of this Agreement
satisfies the requirements of this Section 9.
b) In the event Nutraceutix fails to supply the Products as
required by Nutraceutix's contract with the Customer for a period in
excess of thirty (30) days (the "Failure"), Nutraceutix will
immediately notify SCOLR of the Failure in writing. The notice to SCOLR
shall include Nutraceutix's plan for remedying the Failure, and said
plan shall be
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actionable within sixty (60) days of the occurrence of the Failure (the
"Remedy Period"). The plan shall also include the identification of an
additional manufacturing source for the Products, and the timeframe for
using the additional manufacturing source, which shall be available and
operational within the Remedy Period. The use of the additional
manufacturing source by Nutraceutix will require the written approval
of SCOLR. If the additional manufacturing source is unacceptable to
SCOLR, SCOLR reserves the right to select an additional manufacturing
source for use in the plan to remedy the Failure.
c) In the event that a Nutraceutix manufacturing facility used
to manufacture the Products is closed by a governmental entity for any
amount of time and for any reason whatsoever ("Closing"), Nutraceutix
will immediately notify SCOLR of a Closing in writing. Upon the
occurrence of a Closing, SCOLR may, in its sole discretion, license a
third party manufacturer to manufacture, package, ship, distribute or
sell the Products, or any reasonable variation thereof, to the relevant
Customer for the remainder of the current Term, or until SCOLR, in its
sole discretion, is satisfied that Nutraceutix is able to manufacture
the Products again.
d) If Nutraceutix uses, in its advertising or marketing materials,
the registered trademarks of SCOLR, or if Nutraceutix makes reference
to the CDT patents or processes, or if Nutraceutix makes statements
regarding the efficacy of the CDT technology, Nutraceutix shall have
received the prior approval of SCOLR for such uses. SCOLR shall approve
or reject any such proposed uses within fifteen (15) days of the date
of written submission by Nutraceutix to SCOLR.
10. SCOLR's Obligations. Upon request by Nutraceutix, SCOLR shall
provide to Nutraceutix information as to the contents of CDT, the Products or
other required information, if said information is required by applicable law,
regulations, legal or agency order or process, to be disclosed by any
governmental authorities.
11. Representations and Warranties.
a) Representations and Warranties of SCOLR. Except as set forth in
SCHEDULE 11, SCOLR hereby represents and warrants to Nutraceutix that
(i) SCOLR is the sole owner of the right, title and interest in and to
CDT; (ii) SCOLR is entitled to use the CDT in the United States,
Australia, and Netherlands, and grant the License contemplated
hereunder to Nutraceutix; (iii) CDT is suitable for the purposes for
which it will be used by Nutraceutix; (iv) the CDT formulation as
delivered by SCOLR to Nutraceutix shall be the same qualitative and
quantitative formula as the CDT tested in any clinical studies; (v)
SCOLR has the full power, capacity and right to enter into this
Agreement; (vi) SCOLR has not licensed the CDT or any aspect thereof in
any manner inconsistent with the licenses granted hereunder; (vii)
neither the execution and delivery of this Agreement nor compliance
with the obligations of SCOLR hereunder, will violate the contractual
rights of any third party; and (viii) there are no claims, actions or
lawsuits filed against the CDT.
b) Representations and Warranties of Nutraceutix. Nutraceutix hereby
represents and warrants to SCOLR that (i) it has the full power,
capacity and right to enter into the
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Agreement, including but not limited to, the ability and wherewithal to
provide for the manufacture of the Products in compliance with the
quality and quantity standards contemplated by this Agreement; (ii) it
knows of no pending or threatened action in law or in equity, which
adversely affects the rights granted herein; (iii) neither the
execution and delivery of this Agreement nor compliance with the
obligations of Nutraceutix hereunder will violate the contractual
rights of any third party; (iv) no action, approval or consent,
including but not limited to, any action, approval or consent by any
federal, state, municipal or other governmental agency, commission,
board, bureau or instrumentality is necessary in order to constitute
this Agreement as a valid, binding and enforceable obligation of
Nutraceutix in accordance with its terms; (v) Nutraceutix and any
facilities that it uses to manufacture Products in accordance with the
terms of this Agreement are capable of and will be in compliance with
all licenses, permits, authorizations or product registrations required
by the United States in order to manufacture, distribute, and sell the
Products to the Customer, including, without limitation, being in
compliance with GMP and obtaining all required permits from the FDA;
and (vi) the Products manufactured shall be manufactured pursuant to
the CDT formulation as delivered by SCOLR.
12. New Products. Nutraceutix may request SCOLR's assistance with
respect to development of new products incorporating CDT technology. If SCOLR
agrees in its sole discretion to assist with such development, the parties agree
to cooperate in negotiating a mutually agreeable fee and agreement for the
development of such new products. In the event that SCOLR is successful in
developing a new Product at Nutraceutix's request, Nutraceutix will have the
exclusive right to manufacture and distribute the new Product. Any new health
supplement developed at the request of Nutraceutix shall be added to EXHIBIT B
and considered a Product for the Term hereunder.
13. Acknowledgment Of Ownership Of The CDT. Nutraceutix acknowledges
SCOLR's right, title and interest in and to the CDT and the goodwill associated
therewith. Nutraceutix shall not represent in any manner that it has any
ownership right, title or interest in the CDT other than as set forth in this
Agreement. All rights with respect to CDT not expressly granted to Nutraceutix
under this Agreement are reserved exclusively to SCOLR.
14. Infringement.
a) Nutraceutix shall notify SCOLR in the event that Nutraceutix
learns of any actual or apparent infringement of CDT.
b) SCOLR shall be required to take all necessary actions to protect
the validity of the CDT at its sole expense. Such action may include,
but not be limited to, assuming responsibility at its expense for the
defense of any lawsuit challenging or affecting the rights to the CDT,
settling litigation, and/or instituting litigation at its expense to
protect its rights to the CDT. Nutraceutix shall comply with all
reasonable requests for assistance in connection therewith, including,
without limitation, the furnishing of documents and having its officers
or other persons designated by SCOLR appear as witnesses.
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15. Termination.
a) In addition to any other rights of termination contained in this
Agreement, this Agreement may be terminated by written notice prior to
the expiration of the Term set forth in Section 1 hereof, by either
party for the failure by the other party to perform any material
obligation hereunder, and if such failure to cure such breach shall
continue for a period of sixty (60) days after said written notice
specifying the breach is sent by the non-breaching party to the
breaching party. Termination under this Section shall be without
prejudice to any other rights or remedies available to the
non-breaching party.
b) Upon termination (or upon completion of the Post-Termination
Period described in Section 16 where relevant), Nutraceutix shall cease
all use of CDT and shall immediately return to SCOLR all Confidential
Information of SCOLR, and all copies thereof, in whole or in part, and
any other property of SCOLR in Nutraceutix's possession or control.
c) Nutraceutix shall pay SCOLR all undisputed amounts payable
in accordance with the payment terms set forth herein prior to the date
of expiration or termination of this Agreement.
16. Rights of Parties Upon Expiration or Termination. In the event of
the expiration of this Agreement, or termination which was not a result of
Nutraceutix's failure to perform any material obligation under this Agreement,
Nutraceutix shall have the right for a period of twelve (12) months from the
date of such termination or expiration (the "Post-Termination Period") to
continue the use of the CDT in conjunction with the manufacturing, distribution
and sale of the Products to the Customer in the United States and allowing for
the continued manufacture of the Products in order for Nutraceutix to effect an
orderly transition with Customer and to sell though its existing inventory of
Products and related packaging materials.
17. Indemnification; Insurance.
a) SCOLR agrees to indemnify, defend and hold harmless Nutraceutix
from and against any claim, demand, action, proceeding or cause of
action made or brought against Nutraceutix by any third party,
including, without limitation, any judgment rendered against
Nutraceutix in any legal action and reasonable attorneys' fees and
expenses incurred by Nutraceutix in defending any such claim brought
against it except as otherwise provided below, arising out of or
resulting from (i) a breach of this Agreement by SCOLR; (ii) product
liability attributable to the CDT; (iii) the violation or infringement
of any trademark, trade dress or other intellectual property right
relating to the CDT or other specifications or materials selected by
SCOLR; or (iv) any claim based on a breach of any of the warranties set
forth in this Agreement, provided that none of such occurrences are
caused by the negligence, omission, or willful misconduct of
Nutraceutix.
b) Nutraceutix agrees to indemnify, defend and hold harmless SCOLR
from and against any claim, demand, action or cause of action which is
made against SCOLR by any third party, including, without limitation,
any judgment rendered against SCOLR in
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any such action and reasonable attorneys' fees and expenses incurred by
SCOLR in defending any such claim brought against it except as
otherwise proved below arising out of or resulting from (i) a breach of
this Agreement by Nutraceutix, (ii) the improper manufacture,
distribution and promotion of the Products by Nutraceutix or its
respective employees or agents unless such claim results from the
incorrect product profile information supplied by SCOLR or the CDT;
(iii) the violation or infringement of any trademark or trade dress
rights relating to the Products or other specifications or materials
not provided by or selected by SCOLR; or (iv) any claim based on a
breach of any of the warranties set forth in this Agreement, provided
that none of such occurrences are caused by the negligence, omission,
or willful misconduct of SCOLR.
c) Upon the occurrence of an event which would give rise to a right
of indemnification under this Agreement, the party claiming the right
to indemnification (the "Indemnitee") shall give prompt written notice
to the other party providing reasonable details of the nature of the
event and basis of the indemnity claim. The party obligated to provide
the indemnification (the "Indemnitor") shall then have the right, at
its own expense and with counsel of its choice, to defend, contest or
otherwise protect against any such suit, action, investigation, claim
or proceeding ("Action"). The Indemnitee shall also have the right, but
not the obligation, to participate at its own expense in the defense
thereof with counsel of its choice reasonably acceptable to the
Indemnitee. The Indemnitee agrees to cooperate to the extent reasonably
necessary to assist the Indemnitor in defending, contesting or
otherwise protesting against any such Action provided that the
reasonable cost in doing so shall be paid by the Indemnitor. If the
Indemnitor fails within thirty (30) days after receipt of such notice
to (i) notify the Indemnitee of its intent to defend, or (ii) defend,
contest or otherwise protect against such Action, or fails to
diligently continue to provide such defense after undertaking to do so,
the Indemnitee shall have the right upon ten (10) days' prior written
notice to the Indemnitor, to defend, settle and satisfy any such Action
and recover the costs of the same from the Indemnitor.
d) The provisions of this Section 15 shall survive the expiration
of the Term or any other termination of this Agreement.
e) The parties shall each maintain in full force and effect
throughout the Term product liability insurance with limits of not less
than one million dollars ($1,000,000) per occurrence, two million
dollars ($2,000,000) in the aggregate. The insurance required by this
Agreement shall be primary with respect to any other insurance
available to each party and shall contain a waiver of subrogation by
such party's insurance carrier against the other party and its
insurance carrier with respect to all obligations assumed by each party
pursuant to this Agreement. Each party will name the other party as an
additional insured on its insurance policy and provide the other party
with a certificate evidencing its compliance with this obligation, upon
request from the other party.
18. Force Majeure. None of the parties shall be liable for any failure
to perform or delay in performance of its obligations hereunder (other than an
obligation to pay monies) caused by any circumstances beyond its reasonable
control occurring in the United States, including, but not limited to, fire,
earthquake, war, civil commotion, any act of central or local government,
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industrial disputes, lockouts and strikes, provided, however, that if the period
of default continues for more than sixty (60) days, the other party shall be
entitled to terminate this Agreement forthwith by notice in writing.
19. Further Assurances. The parties shall execute such documents and
consents and take such other action as may be necessary to register this
Agreement with the appropriate governmental authorities.
20. Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
21. Waivers. Neither SCOLR's nor Nutraceutix's failure to enforce any
of the provisions of this Agreement shall constitute a waiver of its rights to
later enforce such terms or conditions. Any waiver under this Agreement must be
in writing signed by the party to be charged therewith and expressly purporting
to constitute such a waiver. Any such waiver shall be effective only for the
specific instance and circumstance with respect to which it is executed and
delivered.
22. Notices. All notices under this Agreement shall be in English and
shall be (i) in writing; (ii) given by regularly scheduled express courier
service, hand-delivered or facsimile (confirmed by such airmail, express courier
or hand-delivered correspondence); and (iii) addressed to the parties at the
addresses set forth immediately below, or to such other address as either party
may advise the other in writing in accordance with the terms hereof:
IF TO SCOLR: WITH A COPY TO:
SCOLR, INC. Xxxxxx Xxxxxxxx Xxxxx
0000 000xx Xxxxxx XX 0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, President and CEO Attention: Xxxx Xxxxxxx
Facsimile: 000-000-0000 Facsimile: 000-000-0000
IF TO NUTRACEUTIX: WITH A COPY TO:
Nutraceutix, Inc. Xxxxxx Xxxx LLP
0000 000xx Xxxxxx XX 0000 Xxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000 000 Xxxxx Xxxxxx
Attention: Xxxxxx Xxxxx Xxxxxxx, XX 00000-0000
Facsimile: 000-000-0000 Attn: Xxx Xxxxx
Facsimile (000) 000-0000
Notices shall be deemed given (i) on the scheduled delivery date, if sent by
regularly scheduled express courier service; and (ii) when transmitted, if
transmitted by facsimile and confirmed in one of the manners aforesaid.
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23. Assignments And Sub-Licenses. Nutraceutix shall not assign its
rights hereunder without the prior written consent of SCOLR. SCOLR may assign
its rights hereunder without the consent of Nutraceutix.
24. Brokers. The parties each agree to indemnify and hold harmless one
another against any loss, liability, damage, cost, claim or expense incurred by
reason of any brokerage commission or finder's fee alleged to be payable because
of any act, omission or statement of the indemnifying party.
25. Relationship of the Parties. This Agreement does not create any
partnership, joint venture or agency relationship between the parties.
26. Execution; Governing Law; Arbitration.
a) This Agreement shall not be binding until it has been executed
on behalf of each party by a duly authorized officer of each party.
b) The validity of this Agreement and the interpretation and
performance of all of its terms and conditions shall be governed by the
substantive and procedural laws of the State of Washington, without
regard to the State of Washington conflicts of law rules.
c) Any and all controversies, claims or disputes arising out of or
relating to this Agreement, or the subject matter, enforceability or
breach thereof, shall be settled and determined exclusively by final
and binding arbitration conducted by a single arbitrator acceptable to
both parties sitting in King County, Washington, in accordance with the
then existing commercial rules of the American Arbitration Association.
Judgment upon any award by the arbitrator may be entered in any court
having jurisdiction. The arbitrator may make any award consistent with
the terms of this agreement, but may not award exemplary or punitive
damages. Each party to this Agreement waives any objection to personal
jurisdiction of the state or Federal courts in King County, Washington.
27. Prevailing Party. The prevailing party in any arbitration,
litigation or other proceeding arising out of or relating to this Agreement, or
the subject matter, enforceability or breach thereof, shall be entitled to
recover from the non-prevailing party its costs and reasonable attorney's fees,
as determined by the arbitrator(s) or court.
28. Entire Agreement. This Agreement, including the Annexes and
Schedules hereto, represents the entire understanding and agreement between the
parties with respect to the subject matter hereof, and supersedes all other
negotiations, understandings and representations (if any) made by and between
such parties.
29. Headings. Any headings used herein are for convenience in reference
only and are not a part of this Agreement, nor shall they in any way affect the
interpretation hereof.
30. Counterparts and Severability. This Agreement may be executed in
multiple copies, each of which shall for all purposes constitute an Agreement,
binding on the parties, and each partner hereby covenants and agrees to execute
all duplicates or replacement counterparts of this
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Agreement as may be required. The provisions of this Agreement shall be deemed
severable. Therefore, if any part of this Agreement is rendered void, invalid,
or unenforceable, such rendering shall not affect the validity and
enforceability of the remainder of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Nutraceutix, INC
By: /s/ Xxxxxx X. Xxxxx
________________________________
Name: Xxxxxx X. Xxxxx
Title: President
SCOLR, INC.
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Name: Xxxxxx X. Xxxxx
Title: President and CEO
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