EXHIBIT 10.33
TRADEMARK LICENSE AGREEMENT
---------------------------
THIS TRADEMARK LICENSE
AGREEMENT
("Agreement"), effective as of December
1, 2004, is made by and between CARALOE, INC. ("Licensor"), a Texas
corporation, having its principal place of business at 2001 Walnut Hill
Lane, Irving, Texas 75038, and MANNATECH, INC., ("Licensee"), a Texas
corporation, having its principal
place of business at
600 S. Royal
Lane,
Suite 200, Coppell, Texas
75019.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, simultaneously
with the execution of this Agreement, Licensor
and Licensee are entering into a
non-exclusive Supply Agreement of even date
herewith (the "Supply Agreement")
for the sale by Licensor and purchase
by Licensee, through its manufacturer, Natural Alternatives
Incorporated
("NAI") of bulk aloe vera
mucilaginous polysaccharide (hereinafter referred
to under the product name of "Manapol[R] powder") to
be used in
products
manufactured by Licensee and NAI
(the "Manufactured Products");
WHEREAS, Carrington Laboratories,
Inc.,
a
Texas
corporation
("Carrington"), claims
the ownership of the trademark Manapol[R] (the
"Mark") and has granted to
Licensor a license to use the Mark and to license
others to use it on an exclusive
and/or a non-exclusive basis;
WHEREAS, Licensee is
desirous of obtaining from Licensor, and Licensor is
willing to grant to Licensee, a
license to use the
product name
Manapol[R]
(the "Mark") in connection with
the advertising and sale of the Manufactured
Products subject to the terms,
conditions and restrictions set forth herein;
and
WHEREAS, Licensor and Licensee are mutually desirous of insuring the
consistent quality of all products
sold in connection with the Mark;
NOW, THEREFORE, in consideration of premises, the mutual covenants,
promises and agreement set forth herein, and other good and valuable
consideration, the receipt and
sufficiency of which are hereby acknowledged,
the parties hereby covenant,
promise and agree as follows:
Article 1
LICENSE
-------
1.1 Terms and Conditions.
Licensor hereby
grants to Licensee the
non-
transferable right and license to use the Mark in connection with the
labeling, advertising and sale of Manufactured Products manufactured and
sold by Licensee during the Term
of this Agreement.
During the Term of this
Agreement, Licensee shall have (a)
the non-exclusive
right to use the
Mark
in connection with Manufactured
Products containing
Manapol[R] powder
that
are intended for sale to the
ultimate consumer in the United States, Canada,
and Mexico, and (b) the non-exclusive right to
use the Mark in
connection
with Manufactured Products
containing Manapol[R]
powder that are
intended
for sale to the ultimate consumer in places
other that the United
States,
Canada and Mexico, that are
specifically and mutually agreed upon from time
to time and listed in Exhibit A
hereto. The countries
in Exhibit A may
be
removed by Caraloe upon written notice to Mannatech that an exclusive
Trademark License Agreement
has been executed
for that country. In that
event, Mannatech shall no longer
be allowed to use the Manapol[R] Trademark
within the country removed by
Caraloe after its existing supplies have been
exhausted. Relative to Japan, Mannatech may use the Trademark on a non-
exclusive basis under the same conditions as those listed in Exhibit A
except no drink may be sold using
Manapol[R] powder or the Trademark.
1.2 License Coterminous With
Supply Agreement. The license granted
by
this Agreement shall run
conterminously with
the Supply Agreement, and any
actions or events which shall operate to extend or terminate the Supply
Agreement shall automatically extend or terminate this Agreement
simultaneously.
1.3 Sublicenses. Licensee shall not have the right
to grant sublicenses
without the written permission of Licensor with respect to the license
granted herein; however,
Licensee may engage
a third party
or parties
to
make and affix labels for the Manufactured Products in compliance with
Articles 2, 3, and 4 hereof,
and/or to distribute and sell the Manufactured
Products in compliance with the terms and conditions of this Agreement.
Licensee shall be expressly obligated to
ensure full
compliance with
all
terms and conditions of this
Agreement.
Article 2
CERTAIN OBLIGATIONS OF LICENSEE AND LICENSOR
--------------------------------------------
2.1 Representations by Licensee.
Licensee shall
not represent in
any
manner that it owns any right, title or interest in or to the Mark.
Licensee acknowledges that its use
of the Mark shall inure to the benefit of
Licensor and shall not create in Licensee's favor any right, title or
interest in or to the Mark.
2.2 Discontinuation of Use of
Mark. Upon the
expiration or
termination
of this Agreement, Licensee will
cease and desist from
all use of the
Mark
in any manner and will not adopt or use, without Licensor's prior
written
consent, any work or mark which is
confusingly or deceptively similar to the
Mark, except that Licensee may
continue to use the Mark under the terms and
conditions of this Agreement
in connection with
any remaining supplies
of
Manapol[R] powder purchased
by Licensee from
Licensor until such
supplies
are exhausted.
2.3 FDA Compliance of Products.
All
products on
which the Mark is
used by Licensee shall be manufactured, packaged, labeled, advertised,
marketed and sold in compliance
with (i) the Federal Food, Drug and Cosmetic
Act and the rules and regulations promulgated
thereunder, as amended
from
time to time if sold for
use within the United
States, and (ii) all
other
applicable laws, rules and
regulations if sold
for use outside the
United
States.
2.4 Inspection. Upon reasonable notice, Licensor
reserves the right
to
inspect Licensee's products
bearing the Mark
and Licensee's
manufacturing
facilities at all reasonable times
to insure Licensee's compliance with this
Agreement.
2.5 Use of Trademark. Licensee shall not use the Mark except as
specifically set forth herein. Without limiting the generality of the
preceding sentence, Licensee shall
not use the Mark in
connection with
the
sale or advertising of
any products other
than the Manufactured
Products.
Any use of the trademark, "Manapol[R]" pursuant
to this agreement is
non-
exclusive. Whenever the Licensee uses the
trademark, "Manapol[R]", it shall
also indicate that such name is the registered trademark
of Licensor
and
shall take all reasonable measures
to assure that there
is no confusion of
ownership of the mark or the
substance which it
identifies, the same
being
the proprietary property of the
Licensee. Likewise,
Licensor, if
referring
to Ambrotose[R], shall indicate
that the same is the trademark of Mannatech
and shall take all reasonable
measures to assure that there is no confusion
of ownership of the mark or the substance which it identifies, the same
being the proprietary property of
the Licensee.
2.6 Trademark Registration.
At Licensor's request and expense and,
except as otherwise provided herein at Licensor's sole discretion and
option, Licensee shall take whatever action is reasonably necessary to
assist Carrington or its assigns in registering the Mark with the U.S.
Patent and Trademark Office ("USPTO") and/or
in perfecting,
protecting or
enforcing Carrington's and
Licensor's rights in
and to the Mark.
Licensee
understands that Carrington or its
assigns may rely solely on Licensee's use
of the Mark to obtain or maintain
registration with the USPTO.
Article 3
MANUFACTURING AND SALE
----------------------
3.1 Manufacturing Facilities.
All manufacturing of the Manufactured
Products shall be done in the Licensee's own facilities or qualified
contract manufacturing
facilities.
3.2 Combination with Other Products. Licensee shall not combine
Manapol[R] powder with any
product or substance
in any manner which
would
violate any laws, rules or regulations of any state, federal or other
governmental body in which the Manufactured
Products are
sold. Licensee
shall not combine Manapol[R] powder with any other substance in a
Manufactured Product that is to be
advertised or sold for use or consumption
by humans or animals if the approval of the U.S. Food and Drug
Administration (the "FDA")
or the U.S.
Department of
Agriculture
("USDA")
for such use or consumption is
