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  CONFIDENTIAL TREATMENT REQUEST    
    


* Portions denoted with an asterisk have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. 


 
 

EXHIBIT 10.23    
  


 
 

HEALTHETECH, INC.
  
    SUPPLY & SERVICES AGREEMENT    
  


        This Supply and Services Agreement ("Agreement") is made on March 25, 2002 (the "Effective Date") by and between: HealtheTech, Inc., which has its
primary place of business located at 523 Park Point Drive, Third Floor, Golden, CO. 80401 USA (hereinafter "HET") and Bally Total Fitness Corporation, located at 8700 West Bryn Mawr Avenue, Chicago,
IL 60631 (hereinafter "BTF"). 


1.    Recitals



        (a)  HET
has developed and commercialized numerous personal health monitoring "Products" including the BodyGemTM Metabolic Measurement Device, and possesses all
trade secret, trademark, patent, and other intellectual property rights associated with the Products as hereinafter defined. 


        (b)  BTF
is a commercial fitness service provider offering weight management and fitness programs to consumer clients at Company-owned and franchised locations in the United
States and Canada. 


        (c)  HET
desires to supply Products to BTF. 


        (d)  BTF
wishes to purchase and deploy HET Products in its Bally Total Fitness Centers in accordance with this Agreement. 




2.    Definitions


        For
purposes of this Agreement, including any Attachments and Appendices, the following terms shall have the following meanings: 



        (a)  "BodyGem
Metabolic Measurement Device" means the BodyGem handheld indirect calorimeter used for the purpose of measuring a person's resting metabolic rate (RMR) along
with its accompanying accessories (one hard mask, one mouth piece, one nose-clip, one medium disposable mask, one AC adapter, one BodyGem User Manual, one training video, and one BodyGem
carrying case). 


        (b)  "Commercial
Fitness Market" means chain fitness centers in the United States and Canada. 


        (c)  "Effective
Date" means the date the Supply and Services are to commence under this Agreement. 


        (d)  "Products"
means the BodyGem Metabolic Measurement Device and its associated single use breathing units, nose clips, and collateral material. 


        (e)  "Purchase"
means the collective execution of (i) placement of a purchase order by BTF, (ii) the acceptance of such purchase order by HET followed by
shipment of the full purchase order quantity by HET or its agent. A "Purchase" shall not be deemed completed until full shipment is made. 



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        (f)    "Single
Use Breathing Unit" means the "Disposable" facemask or mouthpiece that an individual breathes into during a BodyGem metabolic measurement. 


        (g)  "Specific
Target Customers" means customers and clients of BTF owned or franchised Centers in the United States and Canada. 



        (h)  "Term"
means the time from the Effective Date to the date upon which this Agreement expires. 




3.    Grant of Rights to BTF


        (a)    Subject
to the terms of this Agreement, HET hereby will sell Products at a reduced rate specified in Section 6 herein to BTF for use on Specific Target Customers;
however, this grant specifically excludes any right to resell BodyGem Metabolic Measurement Devices. 


        (b)    HET
agrees to supply the BodyGems and Single Use Breathing Units to BTF for the Term of this Agreement under the pricing specified herein. 


4.    Obligations of BTF


        BTF
shall, for the Term of this Agreement: 



        (a)  Provide
for appropriate training to applicable BTF and BTF franchisee employees (where appropriate) sufficient to enable proper use and promotion of metabolic
measurement services using the BodyGem, and use reasonable marketing and promotional efforts to promote the Products to Specific Target Customers. 



        (b)  Allow
HET access to visit any BTF facility at HET's sole expense and during normal business hours, to conduct a review of the use of HET Products with the BTF facility
and if applicable, make suggestions for improvement based upon HET's experience with the Products. BTF agrees to consider such suggestions and make changes it believes, in BTF's sole discretion, are
reasonable. 


        (c)  Not
knowingly incur any liability on behalf of HET, nor in any way pledge or purport to pledge HET's credit; nor describe or hold itself in relation to the Products out
as an employee of HET; nor
describe itself other than as a service provider of metabolic measurements using the Products in relation to HET metabolic measurement technologies; nor make any claims with respect to the Products
(medical or otherwise) inconsistent with written product manuals or HET provided BodyGem training. 


        (d)  Agree
to comply with the Promotional and Branding Guidelines attached as Exhibit A, except where modified by this
Agreement. In case of a conflict between this Agreement and Exhibit A, the terms within this Agreement shall be controlling. For a period of
ninety (90) days after the Effective Date of this Agreement, BTF agrees not to distribute or publish advertising (whether written, broadcast, telecast, posted on web sites or otherwise) created
by or for BTF referring to the Products or using HET branding (per the guidelines in Appendix A) without submitting the same to HET for review and securing specific HET approval in writing,
with such approval to not be unreasonably withheld or delayed (the "Ad Approval Period"). 


        (e)  Acknowledge
that the BodyGem Metabolic Measurement Device being supplied to BTF by HET is not a medical device, is not approved or cleared by the U.S. Food and Drug
Administration (FDA) as a medical device, and is not being offered by HET as a medical device. BTF agrees not to make any medical claims about the HET Products. 



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        (f)    Acknowledge
that the Single Use Breathing Units are disposable components and are not intended for re-use. BTF agrees it shall instruct and cause all the BTF
Fitness Centers not to re-use the Single Use Breathing Units of the BodyGem Metabolic Measurement Device, or otherwise misuse the BodyGem Metabolic Measurement Device in a way that is not
consistent with HET provided instructions for use located in the BodyGem Operator's Manual as provided to Bally or consistent with training by HET. 




5.    Obligations of HET



        (a)  HET
shall supply Products as outlined in this Agreement. 


        (b)  Promotional Materials. HET shall supply BTF with the HET approved artwork and mechanicals required to support BTF's
production of its own brochures and other promotional materials that shall be subject to review and approval by HET. During the Ad Approval Period, BTF agrees to submit promotional materials
referencing any Products to HET no less than five (5) days in advance of any release or publication of such materials. During the Ad Approval Period, HET will review all BTF
promotional materials submitted promptly and will provide written approval or requests for change within five (5) days after receipt of materials from BTF. 


        (c)  Training Support. If requested by BTF, HET will provide BodyGem training to BTF Fitness Center personnel on the following
basis: 




	(i)
	All
on-going training shall be charged at a rate of two hundred dollars ($200.00) per hour, per HET trainer, plus reasonable travel and
related expenses with such expenses to not exceed $1,000 unless pre-authorized by BTF. All on-going training shall be charged in 4-hour block increments. All HET
trainers shall provide training using their own equipment, including the BodyGem Metabolic Measurement Device, but BTF shall provide all Disposables for such training.



	(ii)
	All
fees and expenses shall be substantively documented in a form reasonably acceptable to BTF, and provided to BTF with the invoice to be reimbursed
by BTF within thirty (30) days of date of invoice.



	(iii)
	HET
shall use all reasonable efforts to accommodate the time and place for BTF requested on-going training, but any on-going
training shall be scheduled by mutual agreement of the parties.



	(iv)
	In
order to provide reasonable notice to HET of known or anticipated BTF or BTF Fitness Center training requirements, BTF agrees to give
non-binding good faith training demand forecasts at the beginning of each calendar quarter for the following calendar quarter during the Term of this Agreement. All forecasts shall be in
writing and shall specify the number of attendees and the desired location and duration. 






        (d)  Customer Support. BTF shall have access to HET's normal customer support during regular HET customer support hours
(currently 8:30 a.m. to 5:30 p.m. MST) throughout the BodyGem Metabolic Measurement Device warrantee period of one year. After the initial warrantee period expires, extended warrantees
or additional customer service can be purchased at HET standard rates and availability at the time of purchase. HET warrants that customer support will remain available for the BodyGem Metabolic
Measurement Device for the product life of the BodyGem Metabolic Measurement Device. 



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6.    Prices, Payment, and Shipping



        (a)  The
agreed upon pricing to BTF Products supplied to BTF by HET under this Agreement is specified below (all amounts are in U.S. dollars): 



	Product Description:
 
	 	BTF Price:

	BodyGemTM Metabolic Measurement Device	 	[*] each(1)
	

BodyGem Training Video	
 	

$7 each
	

HET Nose clip	
 	

$1 each
	

Nose clip with foam pads	
 	

$2 each
	

Disposables (single use mouthpiece or facemask):	
 	

 
	 	‹ 10,000 disposables(2)	 	[*] per box of 20
	 	10,020 to 25,000 disposables(2)	 	[*] per box of 20
	 	25,020 to 50,000 disposables(2)	 	[*] per box of 20
	 	50,020 to 100,000 disposables(2)	 	[*] per box of 20
	 	100,020 and above(2)	 	[*] per box of 20






	(1)
	Such
pricing subject to Section 7(b) below.



	(2)
	The
Disposable volume discounts defined above apply to non-cumulative, single purchase order quantities that specify a single shipping or delivery date for the entire
quantity specified in the purchase order. 



        (b)  Special Initial BodyGem Pricing. HET shall honor a one-time order special initial pricing for BodyGem
Metabolic Measurement Devices of [*] each for any quantity of BodyGem Metabolic Measurement Devices Purchased by BTF in its initial order provided that initial order is placed
with HET on or before March 26, 2002. After the initial order of BodyGem Metabolic Measurement
Devices, such pricing shall increase to [*] per unit. Any order qualifying for this special initial pricing shall be non-cancelable by BTF, except for
non-performance or breach by HET. 


        (c)  Disposable Pricing. After the Term of this Agreement expires, HET shall sell Disposable mouthpieces and facemasks to BTF
at a price to be negotiated but not to exceed the lesser of [*] discount from the suggested list price. 



        (d)  Software. It is acknowledged by BTF that HET has provided user web based access to HET's BalanceLogTM software
to allow those users to log personalized nutritional and exercise information on a trial basis. This free trial use shall terminate as of March 29, 2002 and shall be subject to a one time, up
front, per user license fee for continued use. The license fee shall be a [*] for a license for continued web access and use for the period beginning April 1, 2002 and
ending July 31, 2002. The total license fee shall be initially computed by the total number of actual BTF users at the commencement of the license period [*] for each
additional current Bally's customer user who activates and actually uses their BalanceLog account during the period covered by this license fee. These additional fees shall be invoiced by HET each
month. These fees are not subject to fee reduction or reimbursement if any users discontinue use at any time during the license period. 


        (e)  Same Terms. For all orders and deliveries under this Agreement, BTF shall use BTF's purchase order form, attached hereto
as Exhibit B (the "Purchase Order"). In the event of a 



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conflict between this Agreement and the Purchase Order, the terms herein shall govern the subject matter contained within this Agreement. 


        (f)    Delivery. Delivery shall be F.O.B. point of origin at HET's shipping dock, warehouse or point of entry, and all orders
will ship within twenty-four (24) hours of order by BTF. BTF shall insure all products ordered from HET pursuant to this Agreement for full replacement value, including shipping
charges, and shall submit evidence of such insurance to HET upon request. Shipping dates are estimates which are not guaranteed and are based upon prompt receipt of all necessary information. HET
shall in no event be liable for delays caused by fire, act of God, strikes, labor difficulties, acts of governmental or military authorities delay in transportation or in procuring materials or causes
of any kind beyond the HET's control. All shipping charges shall be paid by BTF. Standard shipping shall be via ground unless otherwise specified by BTF in the purchase order. Any expenses associated
with HET compliance with any BTF request for any non-standard method of packaging or shipping or any other F.O.B. point will be BTF's sole responsibility. 


        (g)  Warranty. In addition to the terms in the Agreement, HET warrants that all Products will be free from defects in
materials and workmanship. THIS WARRANTY SHALL EXPIRE TWELVE (12) MONTHS FROM THE DATE OF SHIPMENT FOR BODYGEM METABOLIC MEASUREMENT DEVICES AND NINETY (90) DAYS FOR SINGLE USE BREATHING
UNITS. HET shall, pursuant to the Return Procedure outline in Section 6(g), repair or replace any such Product or part which is defective within the terms of the foregoing warranty, provided
such products and parts
have at all times been operated or used under the normal operating conditions for which they were designed. 


        (h)  Return Procedure. HET shall either repair or replace, at its sole discretion, any defective Product sold to BTF, on an
overnight basis, as follows: To obtain a replacement unit under this Section, BTF will return the Product to HET via overnight shipment, at HET's cost. BTF will also send HET an electronic mail
message or call HET's customer service to provide the tracking number of this overnight shipment. Upon HET's receipt of this tracking number, HET will ship, via overnight delivery and at HET's cost, a
replacement Product to BTF. 


        (i)    Terms of Payment. Payment for all products ordered (and shipping services provided) shall be paid by BTF net thirty
(30) days from date of invoice. Payments will be delinquent if not paid within thirty (30) days after the date of invoice. Delinquent payments will be subject to a late payment fee equal
to 5% of the amount thereof and will bear interest at the rate of 1.5% per month, but will not exceed the maximum rate allowed by law. If HET's accounts receivable from BTF becomes more than ninety
(90) days past due (i.e., more than one hundred twenty (120) days from date of invoice, such delinquency in payment shall constitute breach of this Agreement and HET shall have the right
to terminate this Agreement. All prices and payments are in U.S. Dollars. 




7.    Term



        (a)  This
Agreement shall commence on the Effective Date hereof and shall extend to March 31, 2003 (the "Term"). Following the Term, any potential extension of this
Agreement shall be subject to re-negotiation of pricing, except for Section 6(c), and shall be subject to mutual written agreement to extend. 



        (b)  Either
party may terminate this Agreement in the event of a breach by the other party of any term of this Agreement, upon thirty (30) days written notice if the
breaching party fails to cure such breach within thirty (30) days of such notice of termination. 



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        (c)  Notwithstanding
the foregoing, this Agreement shall terminate upon notice from HET, effective immediately, in the event of the bankruptcy or insolvency of BTF, or in the
event BTF enters into a composition with its creditors, or if BTF undergoes a change in control. 




8.    Representations and Warranties



        (a)  HET
represents and warrants to BTF that HET is qualified to do business under the laws of each jurisdiction in which it is required by law to be so qualified. HET
represents and warrants to BTF that HET has the requisite power and authority to enter into and perform its covenants, duties and obligations under this Agreement. HET further represents and warrants
to BTF that: (i) HET complies, and at all times during the Term will comply, with all applicable laws, rules, regulations, and other legal obligations in effect during the Term; (ii) no
consent of any other person or entity is necessary for HET to enter into and fully perform its covenants, duties and obligations under this Agreement; (iii) no material composed or created by
HET hereunder will infringe upon, violate the privacy of or create or constitute a libel or slander against, or violate any common law statutory right or any other right of any other person, firm,
corporation, or other entity, including but not limited to slander, defamation, right of publicity, copyright, trademark, trade secret, and unfair competition rights. 



        (b)  BTF
represents and warrants to HET that BTF is qualified to do business under the laws of each jurisdiction in which it is required by law to be so qualified. BTF
represents and warrants to HET that BTF has the requisite power and authority to enter into and perform its covenants, duties and obligations under this Agreement. BTF further represents and warrants
to HET that: (i) BTF complies, and at all times during the Term will comply, with all applicable laws, rules, regulations, and other legal obligations in effect during the Term; (ii) no
consent of any other person or entity is necessary for BTF to enter into and fully perform its covenants, duties and obligations under this Agreement; (iii) no promotional material related to
the Products or BalanceLogTM software composed or created by BTF hereunder will infringe upon, violate the privacy of or create or constitute a libel or slander against, or violate any
common law statutory right or any other right of any other person, firm, corporation, or other entity, including but not limited to slander, defamation, right of publicity, copyright, trademark,
patent, trade secret, and unfair competition rights. 




9.    Intellectual Property and Promotional Materials



        (a)  Except
as expressly provided herein, no right, title, permission, license or interest of any kind in or to the use of any trademark, tradename, service mark, name, logo,
or insignia owned, licensed, or used by BTF ("BTF Marks") is, or is intended to be, given or transferred to, or acquired by, HET. HET agrees that it will not utilize any BTF Mark in any manner without
first obtaining BTF's prior written consent thereto, which consent BTF has no obligation to give. HET agrees, prior to public dissemination of such materials, to obtain BTF's prior written consent,
which may be withheld for any or no reason whatsoever, to all advertising, press releases, radio spots and other promotional material related to BTF or this Agreement, which are created by or on
behalf of HET. HET shall not use the BTF Marks in any disparaging or defamatory manner. 



        (b)  Except
as expressly provided herein, no right, title, interest, permission, license or interest of any kind in or to the use of any trademark, tradename, service mark,
name, logo, or insignia owned, licensed, or used by HET ("HET Marks") is, or intended to be, given or transferred to, or acquired by, BTF. Except during the first ninety (90) days of this
Agreement, as described in section 4d, BTF does not need to receive written approval from HET to use HET Marks. BTF shall follow the HET Promotional and Branding Guidelines provided as  Exhibit A and shall not 



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use the HET Marks in any disparaging or defamatory manner. BTF agrees that it will not utilize any HET Mark in any other matter, other than as outlined herein, without first obtaining HET's prior
written consent thereto, which HET will not unreasonably withhold. 




10.  Indemnification


        (a)  HET
shall defend, indemnify and hold BTF, its officers, directors, shareholders, employees, agents, legal representatives, affiliates, subsidiaries, successors and
assigns (collectively the "BTF Group"), harmless of, from and against any and all claims, demands, actions, causes of action, suits, debts, losses, liabilities, damages, liabilities, costs, charges,
fines, judgments and expenses, including reasonable attorneys' fees and court costs, at law or in equity, both known and unknown, foreseeable and unforeseeable, liquidated and unliquidated, insured
and uninsured (collectively, "Claims"), sustained, suffered or incurred by the BTF Group or any of them, at any time, arising from or relating to: 



	(i)
	the
default or breach by HET of any term, provision, representation, warranty, covenant, duty, obligation or agreement made by HET in this Agreement;



	(ii)
	any
negligent act or omission of HET or any of its officers, directors, employees or agents in the operation of HET's business;



	(iii)
	the
violation or alleged violation of any common law or any federal, state, local or foreign statute, law, ordinance, rule, regulation, license,
permit, authorization or registration, policy or order (collectively, "Governmental Laws" and individually, a "Governmental Law") by HET including, without limitation, any action in which it is
alleged that any of the Products were designed, developed, manufactured, assembled, packaged or labeled in violation of any Governmental Law;



	(iv)
	any
product recall of the Products, whether such product recall is initiated by (1) a governmental agency having the power and authority to
require such product recall, or (2) HET, provided HET consults with BTF prior to any such product recall;



	(v)
	the
alleged or actual infringement of the trademark, service mark, trade name, or copyright of any other person or entity with respect to the HET Marks,
any product labeling or other materials associated therewith supplied by HET and utilized in connection with the marketing or packaging of the Products; and



	(vi)
	any
alleged or actual personal injuries (including death) resulting from the use of the Products in full compliance with all written instructions for
use that accompany the actual Product used.. 




        (b)  BTF
shall defend, indemnify and hold HET, its officers, directors, shareholders, employees, agents, legal representatives, affiliates, subsidiaries, successors and
assigns (collectively the "HET Group"), harmless of, from and against any and all claims, demands, actions, causes of action, suits, debts, losses, liabilities, damages, liabilities, costs, charges,
fines, judgments and expenses, including reasonable attorneys' fees and court costs, at law or in equity, both known and unknown, foreseeable and unforeseeable, liquidated and unliquidated, insured
and uninsured (collectively, "Claims"), sustained, suffered or incurred by the HET Group or any of them, at any time, arising from or relating to: 



	(i)
	the
default or breach by BTF of any term, provision, representation, warranty, covenant, duty, obligation or agreement made by BTF in this Agreement; 



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	(ii)
	any
negligent act or omission of BTF or any of its officers, directors, employees or agents in the operation of BTF's business;



	(iii)
	the
violation or alleged violation of any common law or any federal, state, local or foreign statute, law, ordinance, rule, regulation, license,
permit, authorization or registration, policy or order (collectively, "Governmental Laws" and individually, a "Governmental Law") by BTF including, without limitation, any action in which it is
alleged that BTF's use of the Products were not in conformance with the written instructions for use that accompany the Products or was in violation of any Governmental Law unless BTF was instructed
in such use by HET or such use was for which the Products were intended; and



	(iv)
	the
alleged or actual infringement of the trademark, service mark, trade name, or copyright of any other person or entity with respect to the BTF Marks,
any product labeling or other promotional materials associated therewith supplied by or created under the control of BTF and utilized in connection with the marketing or packaging of the Products,
except for any changes made by HET or pursuant to HET's request or any material used by BTF provided by HET. 






        (c)  Claims. HET and BTF each agree to give to the other prompt written notice of any matter upon which it intends to base a
claim for indemnification (an "Indemnity Claim") under Section 10. The indemnified party shall have the right to participate jointly with the indemnifying party in the indemnifying party's
defense, settlement or other disposition of any Indemnity Claim. With respect to any Indemnity Claim relating solely to the payment of money damages and which could not result in the indemnified party
becoming subject to injunctive or other equitable relief or otherwise adversely affect the business or reputation of the indemnified party in any manner, and as to which the indemnifying party shall
have acknowledged in writing the obligation to indemnify the indemnified party pursuant to Section 10, the indemnifying party shall have the sole right to defend, settle or otherwise dispose of
such Indemnity Claim, on such terms as the indemnifying party, in its sole discretion, shall deem reasonable and appropriate; provided that the indemnifying party shall provide reasonable evidence of
its ability to pay any Claims, and with respect to any such settlement, shall obtain the written release of the indemnified party from the Indemnity Claim. The indemnifying party shall obtain the
written consent of the indemnified party prior to ceasing to defend, settling or otherwise disposing of any Indemnity Claim if, as a result thereof, the indemnified party would become subject to
injunctive or other equitable relief or the business or reputation of the indemnified party would be adversely affected in any manner. 


        11. Insurance.    During the Term, HET agrees to maintain, at its sole cost and expense, General Liability insurance, including
Products, Errors and Omissions, and Completed Operations Liability insurance as will fully protect BTF, its officers, directors, agents and employees from claims, including, but not limited to, claims
for consequential damages, and advertiser's liability resulting from the Products which are the subject of this Agreement. Such policies shall be written on an occurrence form and with insurers
carrying a minimum Best's Rating of A. They shall evidence deductibles in amounts satisfactory to BTF and shall provide Combined Single Limits of at least $1,000,000. HET agrees to provide umbrella
coverage in minimum limits of $5,000,000. HET will add BTF and any other party designated by BTF as an additional insured on such policies and provide BTF with a certificate of insurance along with
the applicable additional insured endorsement evidencing such coverage, within ten (10) days after HET executes this Agreement. (A Vendor's endorsement is not an acceptable substitute for the
additional insured endorsement.) Such policies must provide that coverage shall not be terminated, materially changed, or renewal refused without at least thirty (30) days prior written notice
to BTF. HET will also provide Worker's Compensation coverage in statutory limits. 


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        12. Adverse Publicity.    If HET or HET's products are the subject of materially adverse publicity, which in the sole discretion
of BTF is or may be detrimental to the intended purpose of the Agreement or to BTF or its business, then BTF may elect to terminate this Agreement by giving HET at least two (2) business days
prior written notice thereof. If BTF or BTF's products or services are the subject of materially adverse publicity, which in the sole discretion of HET is or may be detrimental to the intended purpose
of the Agreement or to HET or its business, then HET may elect to terminate this Agreement by giving BTF at least two (2) business days prior written notice thereof. 


        13. Confidentiality    


        (a)  Both
BTF and HET shall regard as confidential and proprietary all of the information communicated, in connection with this Agreement, by the other party in writing and
marked "Confidential" (which information shall at all times be the property of the disclosing party) ("Confidential Information"). Neither shall, without the prior written consent from the other
party, at any time (i) use any Confidential Information of the other party for any purpose other than in connection with the performance of its obligations under this Agreement or
(ii) disclose any portion of the Confidential Information of the other party to third parties, except their respective attorneys and advisors. BTF and HET, as applicable, shall promptly at the
termination of this Agreement, upon the request of the disclosing party, either return to the disclosing party all Confidential Information of the disclosing party which is in written or tangible form
(including, without limitation, all copies, summaries and notes of the contents thereof) or promptly destroy all such Confidential Information and have one of their executive officers certify, in
writing, to such destruction to the disclosing party. BTF and HET shall disseminate the Confidential Information to their respective employees, and agents only on a "need to know" basis. BTF and HET
shall cause each of their respective employees who has access to the Confidential Information to comply with the terms and provisions of this Section in the same manner as BTF and HET are bound
hereby. 


        (b)  Notwithstanding
the foregoing, BTF's and HET's obligations pursuant to the above paragraph shall not apply to (i) information that, at the time of disclosure, is,
or after disclosure becomes part of, the public domain other than as the consequence of BTF's or HET's respective breach of this Section; (ii) information that was known or otherwise available
to a party prior to its disclosure by the other party or was independently developed by either party; (iii) information disclosed by a third party, if such third party's disclosure does not
violate any obligation of the third party to the non-receiving party; (iv) information that BTF and HET authorize in advance, in writing, for release; or (v) information
required to be disclosed by the receiving party by reason of any law, governmental request or regulation or any legal proceeding or similar process. In the event that disclosure becomes necessary
under subsection (v) above, the party required to make such disclosure shall give written notice thereof to the other party, before such disclosure is actually made. 



        14. Taxes.    HET acknowledges and agrees that it is HET's obligation to provide for payment of all federal and state income and
employment taxes and unemployment or disability insurance applicable to HET, HET's business, any of HET's employees and any of HET's products, and HET will indemnify BTF and hold BTF harmless to the
extent of any obligation imposed by law on BTF to pay any such amounts in connection with any payments under this Agreement. 


        15. Entire Agreement; Amendment.    This Agreement, together with the Exhibits attached hereto, embodies the entire agreement
and understanding between the parties hereto and supersedes any and all prior and contemporaneous agreements and understandings between the parties hereto relating to the subject matter hereof,
whether verbal or written. No modifications or amendments of this Agreement will be effective unless made in writing and signed by BTF and HET. 


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        16. Assignment.    This Agreement shall inure to the benefit of and be binding upon the parties hereto, their successors and
agents, but either party may not pledge, encumber or assign any of its rights or obligations hereunder in any manner whatsoever without the prior written consent of the other party in each instance. 


        17. Notices and Address for Payment.    Any and all notices, demands, requests, consents, designations and other communications
required or desired to be given pursuant to this Agreement and all payments under this Agreement will be given in writing and will be deemed duly given upon personal delivery, or on the third day
after mailing if sent by certified mail, postage prepaid, return receipt requested, or on the day after deposit with a nationally recognized overnight delivery service which maintains records of the
time, place and receipt of delivery, or upon receipt of a confirmed facsimile transmission, and in each case to the person and address set forth below, or to such other person or address which BTF or
HET may respectively designate in like manner from time to time. 



	If to BTF:	 	If to HET:
	

 	
 	

 
	Bally Total Fitness Corporation

8700 West Bryn Mawr Avenue

Chicago, IL 60631

Attn: Vice President of Retail Operations	 	HealtheTech, Inc.

523 Park Point Drive

Golden, CO 80401

Attention: Director, Sales Operations






        18. Severability.    The provisions of this Agreement are severable. If any provision contained in this Agreement is held to be
invalid or unenforceable in any respect, such provision shall be carried out and enforced only to the extent to which it shall be valid and enforceable, and any such invalidity or unenforceability
shall not affect any other provision of this Agreement, all of which shall be fully carried out and enforced as if such invalid or unenforceable provision had not been set forth herein. 



        19. Governing Law.    This Agreement will be governed, construed and interpreted in accordance with the laws and decisions of
the State of Colorado, without regard to conflict of law principles that would require the law of another state or jurisdiction to be applied. 


        20. Joint Drafting and Neutral Construction.    This Agreement is a negotiated document and shall be deemed to have been drafted
jointly by BTF and HET, and no rule of construction or interpretation shall apply against any particular party hereto based on a claim that the Agreement was drafted by one of the parties. This
Agreement shall be construed and interpreted in a neutral manner. 


        21. No Waiver; Course of Performance.    No waiver by BTF or HET of the breach of any term, condition, warranty, representation,
covenant or agreement contained herein shall be considered as a waiver of the same provision in the future or any other provision and no delay or omission by BTF or HET in exercising any right or
remedy hereunder shall impair any such right or remedy or be construed as a waiver of any default notwithstanding any other act taken or not taken by BTF or HET after such delay or omission. No usage
of trade, course of performance or course of dealing between or among the parties hereto will be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations
of any party hereunder. 


        22. Counterparts.    This Agreement may be executed in two or more counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts taken together will constitute one and the same instrument. One or more parties may sign this Agreement by use of facsimile transmission,
provided that, an original is sent by overnight courier. 


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        23. Relationship of the Parties.    BTF and HET shall be, at all times, independent contractors, solely responsible for the
manner by and the form in which each performs under this Agreement. Nothing contained herein shall be deemed to: (i) create a partnership or joint venture between BTF and HET; (ii) make
either party's employees the employees of the other; or (iii) make either party the agent of the other for any purpose whatsoever. Neither party shall have the authority to bind or obligate, or
represent itself as having on the authority to bind or obligate, the other party in any manner whatsoever. 



        24. Headings.    The numbers, headings, titles or designations of the various Sections are not a part of this Agreement, but are
for convenience and reference only, and do not and will not be used to define, limit or construe the contents of the Sections. 


        25. Cumulative Remedies.    BTF's remedies under this Agreement are cumulative, are not exclusive, and are in addition to any
other rights and remedies BTF may have at law, in equity or otherwise. 



        26. Binding Agreement.    This Agreement will be binding upon and inure to the benefit of BTF and HET, and their respective
legal representatives, successors and permitted assigns, if any. 


 
 

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        IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written by their respective authorized officials. 



	Bally Total Fitness Corporation (BTF)	 	HealtheTech, Inc. (HET)
	

 	
 	

 	
 	

 	
 	

 
	By:	 	/s/ PAUL TOBACK	 	By:	 	/s/ NOEL L. JOHNSON
	 	 	
	 	 	 	

	Name:	 	Paul Toback	 	Name:	 	Noel L. Johnson, Ph.D.
	Title:	 	COO	 	Title:	 	President and COO




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CONFIDENTIAL TREATMENT REQUEST


EXHIBIT 10.23


HEALTHETECH, INC. SUPPLY & SERVICES AGREEMENT

[SIGNATURE PAGE FOLLOWS]