Exhibit 10.1
EXCLUSIVE DISTRIBUTORSHIP AGREEMENT
This Exclusive Distributorship Agreement ("Agreement"), made and effective this
1st day of November 2007 by and between Galea Life Sciences, Inc., A Florida
Corporation ("Manufacturer") and Allion Healthcare, Inc. ("Distributor").
Manufacturer desires to appoint Distributor, and Distributor desires to accept
appointment, as an exclusive distributor of Manufacturer's products within a
defined area as set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements promises set forth
herein, the parties agree as follows:
1. RIGHTS GRANTED.
Manufacturer hereby grants to Distributor the exclusive right, on the terms and
conditions contained herein, to purchase, inventory, promote and resell
"Manufacturer's Products" (as defined below) within the following area (the
"Territory"): Unites States of America.
2. PRODUCTS.
As used in this Agreement, the term "Manufacturer's Products" shall mean
Nutraplete Immune System Formula.
3. TERMS OF SALE.
All sales of Manufacturer's Products to Distributor shall be made pursuant to
this Agreement at such prices and on such terms as Manufacturer shall establish
from time to time on at least thirty (30) days notice. All prices are FOB
Manufacturer's plant. Manufacturer agrees to properly pack all items for
shipment. Risk of loss due to damage or destruction of Manufacturer's Products
shall be borne by Distributor after delivery to the carrier for shipment. The
shipper will be selected by Manufacturer unless Distributor requests a
reasonable alternative. All orders are subject to acceptance by Manufacturer.
Except as otherwise expressly agreed by Manufacturer in advance, this Agreement
shall control all aspects of the dealings between Manufacturer and Distributor
with respect to the Manufacturer's Products and any additional or different
terms in any Distributor order are hereby rejected.
4. MARKETING POLICIES.
Distributor will at all times maintain adequate inventories of Manufacturer's
Products, and assist the Manufacturer in appropriately promoting the product
including helping the Manufacturer arrange clinical evaluations or studies of
the Manufacturer's Products.
5. INDEMNIFICATION.
A. Manufacturer agrees to protect Distributor and hold Distributor harmless from
any loss or claim arising out of inherent defects in any of Manufacturer's
Products existing at the time such product is sold by Manufacturer to
Distributor, provided that Distributor gives Manufacturer immediate notice of
any such loss or claim and cooperates fully with Manufacturer in the handling
thereof.
B. Distributor agrees to protect Manufacturer and hold Manufacturer harmless
from any loss or claim arising out of the negligence of Distributor,
Distributor's agents, employees or representatives in the installation, use,
sale or servicing of Manufacturer's Products or arising out of any
representation or warranty made by Distributor, its agents, employees or
representations with respect to Manufacturer's Products that exceeds
Manufacturer's limited warranty. Further, in the event that any of Distributor's
dealers shall, with respect to any of Manufacturer's Products purchased from
Distributor, fail to discharge the dealer's obligations to the original consumer
pursuant to the terms and conditions of Manufacturer's product warranty and
consumer service policies, Distributor agrees to discharge promptly such
unfulfilled obligations.
6. ORDER PROCESSING AND RETURNS.
A. Manufacturer will employ its best efforts to fill Distributor's orders
promptly on acceptance, but reserves the right to allot available inventories
among distributors at its discretion.
B. Except for Manufacturer's products that are defective at the time of sale to
Distributor, Manufacturer shall not be obligated to accept any of Manufacturer's
Products that are returned. In the event such returns are accepted, Manufacturer
may impose a reasonable restocking charge.
7. FINANCIAL POLICIES.
Distributor acknowledges the importance to Manufacturer of Distributor's sound
financial operation and Distributor expressly agrees that it will:
A. Maintain and employ in connection with Distributor's business and operations
under this Agreement such working capital and net worth as may be required to
enable Distributor properly and fully to carry out and perform all of
Distributor's duties, obligations and responsibilities under this Agreement;
B. Pay promptly all amounts due Manufacturer in accordance with terms of sale
extended by Manufacturer from time to time;
In addition to any other right or remedy to which Manufacturer may be entitled,
shipments may be suspended at Manufacturer's discretion in the event that
Distributor fails to promptly and faithfully discharge each and every obligation
in this Section.
8. USE OF MANUFACTURER'S NAME.
Distributor shall not contest the right of Manufacturer to exclusive use of any
trademark or trade name used or claimed by Manufacturer. Distributor may,
subject to Manufacturer's policies regarding reproduction of same, utilize
Manufacturer's name, trademarks or logos in advertising on stationery and
business cards, without written permission.
9. RELATIONSHIP OF THE PARTIES.
The relationship between Manufacturer and Distributor is that of vendor and
vendee. Distributor, its agents and employees shall, under no circumstances, be
deemed employees, agents or representatives of Manufacturer. Distributor will
not modify any of Manufacturer's Products without written permission from
Manufacturer. Neither Distributor nor Manufacturer shall have any right to enter
into any contract or commitment in the name of; or on behalf of the other, or to
bind the other in any respect whatsoever.
10. TERM AND TERMINATION.
Unless earlier terminated as provided below, the term of this Agreement shall
commence November 1, 2007 and shall continue until October 31, 2012. At the end
of the term, the Agreement shall continue until terminated by either party on at
least ninety (90) days prior notice.
A. Manufacturer may terminate at any time by written notice given to Distributor
not less than ninety (90) days prior to the effective date of such notice in the
event Manufacturer decides to terminate all outstanding distributor agreements
for Manufacturer's Products and to offer a new or amended form of distributor
agreement.
B. Manufacturer may terminate this Agreement upon notice to Distributor, upon
any of the following events: (1) failure of Distributor to fulfill or perform
any one of the duties, obligations or responsibilities of Distributor in this
Agreement, which failure is not cured with ten (10) days notice from
Manufacturer; (2) any assignment or attempted assignment by Distributor of any
interest in this agreement or delegation of Distributors obligations without
Manufacturer's written consent; (3) any sale, transfer or relinquishment,
voluntary or involuntary, by operation of law or otherwise, of any material
interest in the direct or indirect ownership or any change in the management of
Distributor; (4) failure of Distributor for any reason to function in the
ordinary course of business; (5) conviction in a court of competent jurisdiction
of Distributor, or a manager, partner, principal officer or major stockholder of
Distributor for any violation of law tending, in Manufacturer's opinion, to
affect adversely the operation or business of Distributor or the good name,
goodwill, or reputation of Manufacturer, products of Manufacturer, or
Distributor; or (6) submission by Distributor to Manufacturer of false or
fraudulent reports or statements, including, without limitation, claims for any
refund, credit, rebate, incentive, allowance, discount, reimbursement or other
payment by Manufacturer.
11. OBLIGATIONS ON TERMINATION.
On termination of this Agreement, Distributor shall cease to be an authorized
distributor of Manufacturer and:
A. All amounts owing by Distributor to Manufacturer shall, notwithstanding prior
terms of sale, become immediately due and payable;
B. All unshipped orders shall be cancelled without liability of either party to
the other;
C. Distributor will resell and deliver to Manufacturer on demand, free and clear
of liens and encumbrances, such of Manufacturer's Products and materials bearing
Manufacturer's name as Manufacturer shall elect to repurchase, at a mutually
agree price, but not in excess of Manufacturer's current price to distributors
for such products and materials, provided that Manufacturer shall not be
obligated to pay Distributor for any item originally provided free of charge;
and
D. Neither party shall be liable to the other because of such termination for
compensation, reimbursement or damages on account of the loss of prospective
profits or anticipated sales, or on account of expenditures, investments, lease
or commitments in connection with the business or goodwill of Manufacturer or
Distributor or for any other reason whatsoever growing out of such termination.
12. USE OF NAME PROHIBITED.
On termination of this Agreement, Distributor will remove and not thereafter use
any sign containing any trade name, logo or trademark of Manufacturer including,
but not limited to, "Nutraplete", and will immediately destroy all stationery,
advertising matter and other printed matter in its possession or under its
control containing such name, or any of Manufacturer's trademarks, trade names
or logos. Distributor will not at any time after such termination use or permit
any such trademark, trade name or logo to be used in any manner in connection
with any business conducted by it or in which it may have an interest, or
otherwise whatsoever as descriptive of or referring to anything other than
merchandise or products of Manufacturer. Regardless of the cause of termination,
Distributor will immediately take all appropriate steps to remove and cancel its
listings in telephone books, and other directories, and public records, or
elsewhere that contain the Manufacturer's name, logo or trademark. If
Distributor fails to obtain such removals or cancellations promptly,
Manufacturer may make application for such removals or cancellations on behalf
of Distributor and in Distributor's name and in such event Distributor will
render every assistance.
13. ACKNOWLEDGMENTS.
Each party acknowledges that no representation or statement, and no
understanding or agreement, has been made, or exists, and that in entering into
this Agreement each party has not relied on anything done or said or on any
presumption in fact or in law, (1) with respect to this Agreement, or to the
duration, termination or renewal of this Agreement, or with respect to the
relationship between the parties, other than as expressly set forth in this
Agreement; or (2) that in any way tends to change or modify the terms, or any of
them, of this Agreement or to prevent this Agreement becoming effective; or (3)
that in any way affects or relates to the subject matter hereof. Distributor
also acknowledges that the terms and conditions of this Agreement, and each of
them, are reasonable and fair and equitable.
14. ENTIRE AGREEMENT.
This Agreement terminates and supersedes all prior understandings or agreements
on the subject matter hereof. This Agreement may be modified only by a further
writing that is duly executed by both parties.
15. ASSIGNMENT.
Neither this Agreement nor any interest in this Agreement may be assigned by
Distributor without the prior express written approval of Manufacturer, which
may be withheld by Manufacturer at Manufacturer's absolute discretion.
16. NO IMPLIED WAIVERS.
Except as expressly provided in this Agreement, waiver by either party, or
failure by either party to claim a default, of any provision of this Agreement
shall not be a waiver of any default or subsequent default.
17. NOTICES
Any notice required by this Agreement or given in connection with it, shall be
in writing and shall be given to the appropriate party by personal delivery or
by certified mail, postage prepaid, or recognized overnight delivery services.
If to Manufacturer:
Galea Life Sciences
c/o Xxxxxxxx Xxxxxxxx
000 XX 0xx Xxx., Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000
If to Distributor:
18. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with the laws of
the state of Florida USA.
19. SEVERABILITY.
If any term of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then this Agreement, including all of the remaining
terms, will remain in full force and effect as if such invalid or unenforceable
term had never been included.
20. HEADINGS.
Headings used in this Agreement are provided for convenience only and shall not
be used to construe meaning or intent.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Galea Life Sciences, Inc. Allion Healthcare Inc.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxx
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Xxxx Xxxxxxxx, President Xxxxxxx Xxxxx
