EXHIBIT 10.05
BRANDING AND MARKETING
AGREEMENT
This Branding and Marketing Agreement
(“Agreement”), dated December [__], 2007 (the
“Effective Date”), is made and entered into by and
between Specialty Nutrition Group, Inc., a Florida corporation
(“Contractor”), and Health Enhancement Products,
Inc. an Arizona corporation (“Client”).
WHEREAS , Contractor consults on and
implements strategic marketing and branding solutions; and
WHEREAS , Client wishes to engage
Contractor to reposition, rebrand and repackage Clients product
currently called “ProAlgazyme” (the
“Product”) as more particularly described on a
Statement of Work (as defined below); and
WHEREAS , Contractor wishes to
reposition, rebrand and repackage ProAlgazyme upon the
terms and conditions of this Agreement.
NOW , THEREFORE , in consideration
of the premises and the mutual covenants contained in this
Agreement, the parties agree to the foregoing and as
follows:
1.
GENERAL
This Agreement represents the terms and
conditions under which Contractor shall reposition, rebrand and
repackage ProAlgazyme pursuant to a statement of work
(“Statement of Work” or “Project”) which
shall be substantially similar in form and substance to the
Statement of Work attached hereto as Exhibit A. If the
Project increases or changes to include more Statements of Work,
each Statement of Work entered into by the parties shall
incorporate by reference the terms of this Agreement and shall
be made a part hereof; provided, however, the contents of any
Statement of Work shall take precedence over any conflicting
provision in this Agreement solely to the extent necessary to
resolve such conflict.
2.
CONTRACTOR RESPONSIBILITIES
2.1
Repositioning, Rebranding and
Repackaging.
Contractor shall propose and implement the
repositioning, rebranding and repackaging strategies in
accordance with the terms set forth in the applicable Statement
of Work. Contractor shall design and implement the
aforementioned strategy with the assistance of Client and/or
such third parties as may be designated by Client.
3.
CLIENT RESPONSIBILITIES
3.1
Content and Materials .
Client shall provide all Client Materials
specified in the applicable Statement of Work or as otherwise
required by Contractor in order to develop the repositioning,
rebranding and repackaging strategies.
4.
IMPLEMENTATION
4.1
Timetables .
Contractor shall use commercially reasonable
efforts to implement the Project in accordance with the
timetables agreed to by the parties and set forth in the
applicable Statement of Work. Client acknowledges that a
delay by Client in performing its obligations hereunder with
respect to the Project may result in delay by Contractor in
meeting the milestones identified in such timetables.
5.
INTELLECTUAL PROPERTY
5.1
Client Materials .
5.1.1
Warranty; Indemnification . Client
hereby represents and warrants that it possesses all necessary
rights and privileges to use and publish the Client Materials
and to permit Contractor to do so. Should any of the
Client Materials become, or in Client’s opinion, be likely
to become, the subject of any third-party claim for infringement
of any copyright, trademark, service mark, trade name, or
similar proprietary rights conferred by contract, by common law,
or by any law of the United States of America or any state or
foreign government (an “Infringement Claim”), Client
may, at its option, but shall not be obligated to: (a) instruct
Contractor to continue using the allegedly infringing materials
and indemnify, defend, and hold harmless Contractor and its
employees, agents, successors, and assigns from and against any
and all costs, expenses or losses (including reasonable
attorneys’ fees) arising from or in connection with such
Infringement Claim; (b) procure, at no cost to Contractor, the
right to continue to use the allegedly infringing item; or (c)
replace, remove, and/or modify the allegedly infringing
materials to make them non-infringing. If Client elects
not to remedy the infringement by procuring the right to
continue to use or by replacing, removing, or modifying the
allegedly infringing material, then Contractor may, at its sole
option, immediately terminate the Statement(s) of Work and
Client shall pay Contractor in full for any and all services
performed up to the date of termination regardless of whether
the Project is completed and shall further indemnify Contractor
and its employees, agents, successors, and assigns from and
against any and all costs, expenses, or losses (including
reasonable attorneys’ fees) arising from or in connection
with such Infringement Claim.
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5.1.2
Sale of Products . Client shall
indemnify, defend and reimburse Contractor for, and hold
Contractor harmless from, any and all third-party claims or
lawsuits and any resulting costs (including reasonable
attorneys’ fees), damages, losses, consequences, awards
and judgments: (a) based on the use by Client or any
third party of information or data retrieved from or produced by
Contractor within the requirements of the Statement of
Work;(b) for injury to any person or property attributable
in whole or in part, directly or indirectly, to any sale of the
Product; or (c) for any criminal or civil fines or actions,
including any fines or action deriving from or relating to
injury to any person or property, relating to any violation of
federal, state, local or international laws or regulations
relating in whole or in part, directly or indirectly, to the
promotion or sale of the Product.
5.2
Contractor Materials .
5.2.1
Developed Materials . Contractor
hereby assigns, sells, and transfers ownership of all text,
photos, graphics, recordings, or other materials of any kind and
nature, other than Stock Materials (as defined below),
originally developed by Contractor for use in the repackaging,
rebranding and repositioning of the Product and specifically
relating to Client (including, but not limited to, logos,
photographs, or graphic representations of Client’s
personnel or premises, descriptions of Client’s business
practices, and other materials relating to Client’s
identity in the marketplace) (“Developed
Materials”), including all copyright and other
intellectual property rights therein, so that Client shall own,
without any restriction of any kind, all rights and benefits of
use and ownership in all Developed Materials for all forms of
media. Client hereby grants to Contractor a limited right
and license to use the Developed Materials solely in connection
with the provision of the services by Contractor pursuant to the
terms of this Agreement.
5.2.2
Stock Materials . Contractor hereby
grants to Client a restricted, non-exclusive, non-transferable
license to use all text, photos, graphics, recordings, or other
materials of any kind and nature, other than Developed Materials
(as defined above), originally developed by Contractor or
licensed to Contractor for general use by Contractor in the
development of branding strategies for its clients (“Stock
Materials”), including, but not limited to, stock
photography, buttons, backgrounds, clip art, and menu
hierarchies, regardless of whether such Stock Materials are
developed by or licensed to Contractor before, during, or after
the provision of the services pursuant to this Agreement;
provided, however, that for any Stock Materials that have been
licensed to Contractor, Contractor grants the foregoing license
to Client to use such licensed Stock Materials subject the
restrictions, if any, of the license(s) granted to Contractor.
The license granted by Contractor shall extend solely to
the use of the Stock Materials by Client in connection with the
sales and marketing of the Product. Any republication,
resale, sublicensing, leasing, renting, commercial use or other
use of the Stock Materials without the express written consent
of Contractor is prohibited.
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5.2.3
Representation, Warranty, and Indemnity .
Contractor hereby represents and warrants that it
possesses all necessary rights and privileges to grant the
foregoing limited licenses in the Stock Materials as set forth
in this Section 5. Should any of the foregoing become, or
in Contractor’s opinion, be likely to become, the subject
of any third-party infringement claim, Contractor may, at its
option, but shall not be obligated to: (a) indemnify, defend,
and hold harmless Client and its employees, agents, successors,
and assigns from and against any and all losses arising from or
in connection with such claim; (b) procure for Client, at no
additional cost to Client, the right to continue to use the
allegedly infringing item; or (c) replace and/or modify the
allegedly infringing item to make it non-infringing. If
Contractor elects not to remedy the infringement by procuring
the right to continue to use or by replacing or modifying the
allegedly infringing item, then either party may immediately
terminate the applicable Statement of Work and Contractor shall
return the amount of any payments actually delivered by Client
to Contractor thereunder. The foregoing represents
Client’s sole and complete remedy with respect to any
third-party claim of infringement.
5.3
Indemnity Procedures .
An indemnified party hereunder shall promptly
notify the indemnifying party of any such claim of which it
becomes aware and shall: (a) at the indemnifying
party’s expense, provide reasonable cooperation to the
indemnifying party in connection with the defense or settlement
of any such claim; and (b) at the indemnified party’s
expense, be entitled to participate in the defense of any such
claim. The indemnified party agrees that the indemnifying
party shall have sole and exclusive control over the defense and
settlement of any such third-party claim; provided, however,
that the indemnifying party shall not acquiesce to any judgment
or enter into any settlement for other than money damages for
which the indemnified party shall be indemnified.
5.4
Trademark Restrictions .
Neither Client nor Contractor (as applicable,
“Licensee”) shall do or suffer to be done any act or
thing that would impair the rights of the other party (the
“Licensor”) in the Contractor Marks or Client Marks,
as applicable (“Licensor’s Marks”) or damage
the reputation for quality inherent in Licensor’s Marks.
Each party acknowledges and agrees that: (a) Licensor
is the exclusive owner of or controls the Licensor’s
Marks, (b) the use of Licensor’s Marks by Licensee
does not convey to Licensee any right, title or interest in or
to Licensor’s Marks; (c) Licensee may not contest
Licensor’s Marks, or register or attempt to register in
any jurisdiction any of Licensor’s Marks or any
confusingly similar trademark or trade name; (d) Licensee
may not use Licensor’s Marks with respect to any products,
services or materials not provided by Licensor, or in any way
which might result in confusion as to Client, Contractor, or any
third party being separate and distinct entities; and (e)
Licensee’s use of Licensor’s Marks, including all
goodwill associated with such use, shall inure solely to the
benefit of Licensor. Licensor warrants to and for the
benefit of the Licensee that Licensor’s Marks do not
infringe upon the rights of any third party including, without
limitation, any rights under trademark or unfair competition law
and that Licensor has all rights necessary to grant the license
to use granted herein.
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5.5
Ownership; No Implied Grant .
5.5.1
Ownership, No Implied Grant . As
between Contractor and Client, the parties acknowledge and agree
that Contractor (or its licensors) own all right, title and in
the Stock Material and Contractor’s proprietary methods
and methodologies, documentation, tools, trade secrets, works of
authorship and other proprietary materials that are protected by
intellectual property rights held by Contractor and/or its
licensors, including, but not limited to, any and all
intellectual property rights and other proprietary rights
embodied therein or otherwise applicable thereto. Except
as expressly set forth in this Agreement, nothing herein shall
grant, or be deemed to grant to Client, any right, title, or
interest in or to the any of the foregoing.
5.5.2
New Material . Any updates,
modifications, enhancements or replacements to the Stock
Material including, but not limited to, all intellectual
property rights embodied therein, shall be the sole and
exclu
