EX-10.12






INDEPENDENT CONTRACTOR PROPRIETARY INFORMATION




AND INVENTIONS AGREEMENT




In consideration of my independent contractor relationship with Naturade, Inc., a Delaware
corporation (the “Company”) and my compensation from the Company, I, Naomi Balcombe,
hereby agree as follows:



1. Proprietary Information. I understand that the Company possesses and will possess
Proprietary Information that is important to its business. “Proprietary Information” is
information (whether conveyed orally, in writing or otherwise) that was or will be developed,
created, or discovered by or on behalf of the Company, or that became or will become known by, or
was or is conveyed to the Company, that has or could have commercial value in the Company’s
business, unless (a) the information is or becomes publicly known through lawful means; or (b) the
information is disclosed to me without confidential or proprietary restriction by a third party who
rightfully possesses the information (without confidential or proprietary restriction) and who did
not learn of it directly or indirectly from the Company.



Proprietary Information includes, without limitation, any Company Inventions (as defined
below) and any information relating to (i) information about proposed products, product
development, research, processes, costs, profits, marketing plans, strategies, forecasts, sales or
commissions; (ii) plans for the future development or new product concepts; (iii) the compensation,
performance and terms of employment of other employees; (iv) all other information that has been or
will be given to me in confidence by the Company (or any affiliate); and (v) any information that
the Company obtains from another party that it treats as proprietary or designates as Proprietary
Information.



At all times, both during my independent contractor relationship with the Company and after
its termination, I will not, directly or indirectly, use, make available, sell, disclose or
otherwise communicate to any third party, other than in my assigned duties for the benefit of the
Company, any Proprietary Information or anything relating to it. I understand that the
unauthorized disclosure of Proprietary Information may be highly prejudicial to the Company’s
interests and an improper disclosure of trade secrets. Without limiting the foregoing, I shall not
make copies of, or otherwise reproduce, Proprietary Information unless authorized by the Company
for reproduction or as necessary to fulfill my obligations under that certain Consulting Agreement
(the “Consulting Agreement”) or Broker Agreement (the “Broker Agreement”) between myself and the
Company of even date herewith.



2. Company Materials. “Company Materials” are documents or other media or tangible
items that contain or embody Proprietary Information, whether such documents have been prepared by
me or by others. “Company Materials” include, without limitation, blueprints, drawings,
photographs, charts, graphs, notebooks, customer lists, computer software, media or printouts,
sound recordings and other printed, typewritten or handwritten documents, as well as samples,
prototypes, models, products and the like.



3. Intellectual Property.



3.1 All Proprietary Information and all right, title and interest in and to any patents,
patent rights, copyrights, trademark rights, mask work rights, trade secret rights, and all other
intellectual and industrial property and proprietary rights that currently exist or may exist in
the future anywhere in the world belonging to or created for the Company (collectively, “Rights”)
in connection therewith shall be the sole property of the Company. I hereby assign to the Company
any Rights I may have or acquire in such Proprietary Information.



3.2 I acknowledge and agree that I have no expectation of privacy with respect to the
Company’s telecommunications, networking or information processing systems (including, without
limitation, stored company files, e-mail messages and voice messages) and that my activity and any
files or messages on or using any of those systems may be monitored at any time without notice. I
further agree that any property situated on the Company’s premises and owned by the Company,
including disks and other storage media, filing cabinets or other work areas, is subject to
inspection by Company personnel at any time with or without notice. All Company Materials shall be
the sole property of the Company. I agree that during my independent contractor relationship with
the Company, I will not remove any Company Materials from the business premises of the Company or
deliver any Company Materials to any person or entity outside the Company, except as may be
necessary to do in connection with performing the duties of my engagement as an independent
contractor. I recognize that the unauthorized taking of any Proprietary Information may be a crime
under the Cal. Penal Code §499c or comparable laws of other states or the United States, and may
also result in civil liability under Sections 3426.1 through 3426.11 of the California Civil Code,
or comparable laws of other states. I further agree that, immediately upon the termination of my
engagement as an independent contractor by me or by the Company for any reason, or for no reason,
or during my engagement as an independent contractor if so requested by the Company, I will return
all Company Materials, apparatus, equipment and other physical property, or any reproduction of
such property, excepting only (a) my personal copies of records relating to my compensation; and
(b) my copy of this Independent Contractor Proprietary Information and Inventions Agreement (this
“Agreement”), the Consulting Agreement and the Broker Agreement.



3.3 I agree that all “Inventions” (which term includes patentable or non-patentable
inventions, original works of authorship, derivative works, trade secrets, trademarks, copyrights,
service marks, discoveries, patents, technology, algorithms, computer software, application
programming interfaces, protocols, formulas, compositions, ideas, designs, processes, techniques,
know-how, data and all improvements, rights and claims related to the foregoing), made, conceived,
reduced to practice or developed by me or on my behalf (in whole or in part, either alone or
jointly with others) during my engagement as an independent contractor and which relate to the
consulting work that I am engaged in by the Company, shall be the sole property of the Company. I
hereby assign, without further consideration, all such Inventions (“Company Inventions”) to the
Company (free and clear of all liens and encumbrances), and the Company shall be the sole owner of
all Rights in connection therewith.



I acknowledge that all original works of authorship which have been made and which are made by
me (in whole or in part, either alone or jointly with others) within the scope of my work as an
independent contractor for the Company and which are protectable by copyright are “works made for
hire,” as defined in the United States Copyright Act (17 USCA, Section 101). I have not disclosed
and will not disclose Inventions covered by this Section 3.3 to any person outside the
Company, unless I am requested to do so by management personnel of the Company.



3.4 I have maintained and agree to maintain adequate and current written records on the
development of all Company Inventions and have disclosed and agree to disclose promptly to the
Company all Company Inventions and relevant records, which records will remain the sole property of
the Company. I further agree that all information and records pertaining to any idea, process,
trademark, service mark, invention, technology, computer program, original work or authorship,
design, formula, discovery, patent, or copyright that I do not believe to be a Company Invention,
but is conceived, developed, or reduced to practice by me (in whole or in part, either alone or
jointly with others) during my engagement as an independent contractor and pursuant to my
engagement as an independent contractor to the Company, shall be promptly disclosed to the Company
(such disclosure to be received in confidence). The Company shall examine such information to
determine if in fact the ideas, process, or invention, etc., constitutes a Company Invention and is
therefore subject to assignment under Section 3.3. Such disclosures shall be received by
the Company in confidence, to the extent they are not assigned to the Company in Section
3.3, and do not extend such assignment.



3.5 I agree to perform, during and after my engagement as an independent contractor, all acts
deemed reasonably necessary or desirable by the Company to permit and assist it, at the Company’s
expense, in evidencing, perfecting, recording, obtaining, maintaining, defending and enforcing
Rights and/or my assignment with respect to Company Inventions in any and all countries. Such acts
may include, without limitation, execution of documents and assistance or cooperation in legal
proceedings. Should the Company be unable to secure my signature on any document necessary to
apply for, prosecute, obtain, enforce or defend any Rights relating to any assigned Invention,
whether due to my mental or physical incapacity or any other cause, I hereby irrevocably designate
and appoint the Company and its duly authorized officers and agents, as my agents and
attorneys-in-fact, with full power of substitution, to act for and in my behalf and instead of me,
to execute and file any documents and to do all other lawfully permitted acts to further the above
purposes with the same legal force and effect as if executed by me, provided that the power of
attorney shall not apply to inventions which are not Company Inventions.



3.6 Any assignment of copyright hereunder (and any ownership of a copyright as a work made for
hire) includes all rights of paternity, integrity, disclosure and withdrawal and any other rights
that may be known as or referred to as “moral rights” (collectively, “Moral Rights”). To the
extent such Moral Rights cannot be assigned under applicable law and to the extent the following is
allowed by the laws in the various countries where Moral Rights exist, I hereby waive such Moral
Rights and consent to any action of the Company that would violate such Moral Rights in the absence
of such waiver and consent. I will confirm any such waivers and consents from time to time as
requested by the Company.



3.7 I agree that I will not incorporate, or permit to be incorporated, any Inventions made,
conceived, reduced to practice or developed by me (in whole or in part, either alone or jointly
with others) either: (a) prior to or (b) outside the scope of my engagement as an independent
contractor for the Company (“Prior Inventions”). Notwithstanding the foregoing, I hereby grant the
Company a royalty-free, nonexclusive, perpetual, irrevocable, transferable, worldwide license (with
rights to sublicense through multiple tiers of sublicense) to practice all Rights relating to any
Prior Inventions (or other Inventions that are not assigned or assignable to Company hereunder)
that become incorporated in any way, or I permit to be incorporated in any way, in any Company
Inventions or any other Company technology or products.



4. Former Employer Information. I agree that I will not, during my engagement as an
independent contractor by the Company, improperly use or disclose any confidential information,
proprietary information or trade secrets of my former or concurrent employers. I agree that I will
not bring onto the premises of the Company any document or any property belonging to my former
employers unless consented to in writing by them. I represent and warrant that I have returned all
property and confidential information belonging to all prior employers.



5. Non-Solicitation of Employees. I agree that for a period of twenty-four (24)
months following the termination of my engagement as an independent contractor, except as set forth
in the following sentence, I will not, directly or indirectly, on behalf of myself or any other
person or entity, solicit the services of any person who was employed by the Company on the date of
my termination of my engagement as an independent contractor or at any time during the six (6)
month period prior to the termination of my engagement as an independent contractor. For the
avoidance of doubt, an employee shall be deemed not to have been solicited for employment if such
employee responds to a general public advertisement for job openings.



6. Non-Competition. I agree that during my engagement as an independent contractor I
will not engage in any employment, business, or activity that is in any way competitive with the
business or proposed business of the Company, and I will not assist any other person or entity in
competing with the Company or in preparing to engage in competition with the business or proposed
business of the Company. The provisions of this Section 6 shall apply both during normal
working hours and at all other times including, without limitation, nights, weekends and vacation
time, while I am engaged as an independent contractor by the Company.



7. Prior Actions and Knowledge. I represent and warrant that from the time of my
first contact or communication with the Company, except as is necessary in connection with that
certain Asset Purchase Agreement (the “Asset Purchase Agreement”) by and between The Ageless
Foundation, Inc. and Quincy Investments Corp., I have held in strict confidence all Proprietary
Information and have not and will not: (a) disclose any Proprietary Information or deliver any
Company Materials to anyone outside of the Company, or (b) use, copy, publish, or summarize any
Proprietary Information or remove any Company Materials from the business premises of the Company,
except to the extent necessary and appropriate to carry out my responsibilities as an independent
contractor to the Company, or (c) improperly use or disclose any confidential information,
proprietary information or trade secrets of my former or concurrent employers or any other third
party, or (d) bring onto the premises of the Company any document or any property belonging to my
former employers unless consented to in writing by them, or (e) from my first date of engagement as
an independent contractor by the Company, violated or breached either Section 4 or 6, or
otherwise performed any of the restricted or prohibited activities listed therein.



8. No Conflict with Obligations to Third Parties. I represent that my performance of
all the terms of this Agreement has not breached and will not breach any agreement to keep in
confidence proprietary or confidential information acquired by me in confidence or in trust prior
to my engagement as an independent contractor by the Company. I have not entered into, and I agree
I will not enter into, any agreement either written or oral in conflict herewith or in conflict
with my engagement as an independent contractor by the Company. The performance of this Agreement
does not and will not violate any applicable law, rule or regulation or any proprietary or other
right of any third party.



9. Remedies; Waiver. I recognize that nothing in this Agreement is intended to limit
any remedy of the Company under the California Uniform Trade Secrets Act. I recognize that my
violation of this Agreement could cause the Company irreparable harm, the amount of which may be
extremely difficult to estimate, making any remedy at law or in damages inadequate. Therefore, I
agree that the Company shall have the right to apply to any court of competent jurisdiction for an
order restraining any breach or threatened breach of this Agreement and for any other relief the
Company deems appropriate. This right shall be in addition to any other remedy available to the
Company. I ALSO ACKNOWLEDGE AND UNDERSTAND THAT I SHALL NOT, UNDER ANY CIRCUMSTANCE, HAVE ANY
RIGHT TO SEEK OR ATTEMPT TO SEEK ANY INJUNCTIVE RELIEF AGAINST THE COMPANY WITH RESPECT TO ANY
BREACH OR THREATENED BREACH OF THIS AGREEMENT, AND I HEREBY WAIVE ANY AND ALL SUCH RIGHTS AGAINST
THE COMPANY.



10. Indemnity. I agree to indemnity and hold harmless the Company from and against
any and all third party claims, joint or several, with regard to: (a) the ownership, and/or rights
to, any and all Inventions, or other work, information or materials furnished, or to be furnished,
to or on behalf of the Company by me; or (b) all activities, work, efforts and/or production of
technology, negligently performed by me on behalf of the Company (or performed without
authorization) pursuant to any written or oral engagement that the Company has or had with me.



11. Survival. I agree that my obligations under Sections 1,
3, 5, 6, 9 and 10 through 18 of this Agreement
shall continue in effect after termination of my engagement as an independent contractor by the
Company, unless such termination arises from the material breach of the Company’s obligations under
the Consulting Agreement or the Asset Purchase Agreement.



12. Controlling Law; Venue; Severability. I agree that the sole jurisdiction and
venue for actions related to the subject matter hereof shall be the state and federal courts
located in the County of Miami-Dade, Florida. I further agree that if one or more
provisions of this Agreement are held to be illegal or unenforceable under applicable Florida law,
such illegal or unenforceable portion(s) shall be limited or excluded from this Agreement to the
minimum extent required so that this Agreement shall otherwise remain in full force and effect and
enforceable in accordance with its terms.



13. Successors and Assigns. This Agreement shall be binding upon me, my heirs,
executors, assigns, and administrators and shall inure to the benefit of the Company, its
subsidiaries, successors and assigns. The failure, whether purposeful or otherwise, to exercise in
any instance any right, power or privilege under this Agreement or under law shall not constitute a
waiver of any other right, power or privilege, nor of the same right, power or privilege in any
other instance.



14. Entire Agreement/Modification. The terms of this Agreement (including all
attached Exhibits, which are incorporated herein by this reference) are the final expression of my
agreement with respect to its subject matter and may not be contradicted by evidence of any prior
or contemporaneous agreement. This Agreement can only be modified by a subsequent written
agreement executed by an officer of the Company.



15. Integration. This Agreement supersedes all, and may not be contradicted by
evidence of any, other prior and contemporaneous agreements and statements on these subjects. If
any practices, policies, or procedures of the Company, now or in the future, that apply to me are
inconsistent with the terms hereof, the provisions of this Agreement shall control unless changed
in writing by the Company.



16. Nature of Relationship. This Agreement is not an employment agreement. The Company
may terminate my engagement as an independent contractor with it at any time, with or without
cause, subject to the terms of that certain Consulting Agreement and Broker Agreement.



17. Construction. This Agreement shall be construed as a whole, according to its fair
meaning, and not in favor of or against any party. By way of example and not limitation, this
Agreement shall not be construed against the party responsible for any language in this Agreement.
The headings of the paragraphs hereof are inserted for convenience only, and do not constitute part
of and shall not be used to interpret this Agreement.



18. Rights Cumulative. The rights and remedies provided hereby to the Company are
cumulative, and the exercise of any right or remedy by the Company, whether pursuant hereto, to any
other agreement, or to law, shall not preclude or waive the Company’s right to exercise any or all
other rights and remedies.

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I HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE OBLIGATIONS WHICH IT IMPOSES
UPON ME WITHOUT RESERVATION. I HAVE HAD THE OPPORTUNITY TO CONSULT LEGAL COUNSEL IN REGARD TO THIS
AGREEMENT AND AM FULLY AWARE OF ITS LEGAL EFFECT. I HAVE ENTERED INTO THIS AGREEMENT FREELY AND
VOLUNTARILY AND BASED ON MY OWN JUDGMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME TO
INDUCE ME TO SIGN THIS AGREEMENT.



	 	 	 
	Date: August 5, 2005

	 	/s/ Naomi Balcombe
	
 
	 	 
	
 
	 	Independent Contractor Signature
	
 
	 	Naomi Balcombe
	 
	 	 
	 
	 	 
	 
	 	 
	Accepted and Agreed to:

	 	

	 
	 	 
	Naturade, Inc.

	 	

	 
	 	 
	By:/s/ Bill D. Stewart

	 	

	 

	 	

	Name: Bill D. Stewart

	 	

	Title: Chief Executive Officer

	 	

	 
	 	 







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