MARKETING REPRESENTATIVE AGREEMENT
EXHIBIT 10.9
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR CONFIDENTIAL TREATMENT WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION. THE NON-PUBLIC INFORMATION HAS BEEN FILED WITH THE COMMISSION.
THIS
MARKETING REPRESENTATIVE AGREEMENT (this “Agreement”) is made and entered into
this 7th day of July, 2006 (the “Effective Date”), by and between
AMERISOURCEBERGEN CORPORATION, a Delaware corporation having an address at 0000
Xxxx Xxxxx, Xxxxxxxxxxxx, XX 00000-0000 (“ABC”), and MOUNTAIN
CAPITAL, LLC, doing business as ARROW MEDIA SOLUTIONS, a New York limited
liability company having an address at 0000 Xxxxxxx Xxxxxx, Xxxxx 0, Xxxx
Xxxxxx, Xxx Xxxx 00000 (“AMS”).
RECITALS:
A. AMS
has developed and sells various kiosks to transfer digital images (each a “Kiosk”) along with
various accessories including, but not limited to, dyes, printers, paper and
software (the “Accessories”).
B. AMS
desire to appoint ABC, and ABC desires to accept such appointment, as a
marketing representative for the sale of Kiosks to ABC’s customers (each an
“End User”), in
accordance with the terms and conditions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, and intending to be legally bound hereby, the parties agree as
follows:
Section
1. Definitions. Except
for me terms defined elsewhere in this Agreement, the following terms shall have
the meanings specified below:
“ABC Account Number”
shall mean an End User’s account number with ABC through which such End User may
purchase one or more Kiosk Packages.
“End User Price” shall
mean the price that ABC charges to an End User for the purchase of a particular
Kiosk Package.
“Kiosk Package” shall
mean the Kiosk(s), Accessories and Services sold together to an End User
pursuant to this Agreement.
“Kiosk Purchase
Agreement” shall mean that certain purchase agreement attached hereto as
Exhibit B pursuant to which one or more Kiosk Packages are sold to an End
User.
“Kiosk Purchase Price”
shall mean that price charged by AMS to ABC for a Kiosk Package or a number of
Kiosk Packages as set forth in Exhibit A attached hereto.
“Leasing Company”
shall mean any Person that provides leasing or financing to End Users for the
lease, lease to purchase or purchase of one or more Kiosk Packages.
“Person” shall mean an
individual, corporation, partnership, trust, association, entity or governmental
authority.
“Services” shall mean
those installation, training, warranty, and maintenance and support services
provided by AMS to End Users pursuant to the Kiosk Purchase
Agreement.
“Term” shall have the
meaning ascribed thereto in Section 8.1 of this Agreement
Section
2. Grant of
Rights.
2.1 Appointment as Marketing
Representative. During the Term of this Agreement and except as otherwise
provided in this Agreement, AMS hereby appoints ABC as a marketing
representative for the sale of Kiosk Packages to ABC customers and ABC accepts
such appointment.
2.2 License to End Users.
ABC shall arrange for the sale of the Kiosk Packages to ABC customers and for
each sale of one or more Kiosk Packages to an ABC Customer each End User shall
be required to execute a Kiosk Purchase Agreement.
2.3 Ownership. As between
AMS and ABC, AMS owns and retains all right, title and interest in and to (i)
the Kiosk Packages; (ii) all trademarks, service marks and trade names of AMS
associated with the Kiosk Packages (the “AMS Trademarks”); and
(iii) all copyrights, patents, trade secret rights and other intellectual
property associated with the Kiosk Packages (the “Intellectual
Property” and collectively with the Kiosk Packages and the AMS
Trademarks, the “AMS
Property”).
2.4 Use of the
Trademarks. During the Term of this Agreement, ABC shall have the right
to use and reproduce the AMS Trademarks in connection with ABC’s advertising,
marketing and promotion of the Kiosk Packages. If ABC, in the course of
exercising its rights under this Agreement acquires any goodwill or reputation
in any of the AMS Trademarks, all such goodwill or reputation shall be
transferred to and shall vest in AMS when and as, on an ongoing basis, such
acquisition of goodwill or reputation occurs, as well as at the expiration or
termination of this Agreement, without any separate payment or other
consideration of any kind to ABC, and ABC agrees to take upon AMS’s request, any
commercially reasonable actions necessary to effect such vesting.
Section
3. Pricing and
Payment.
3.1 Purchase of Kiosk Packages
by End Users.
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3.1.1
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Purchase Through ABC
Account Number. During the Term of this Agreement, if an End User
purchases one or more Kiosk Packages using its ABC Account Number, then
for each of these End User purchases AMS will invoice ABC less then the
retail price of the Kiosk Packages. The % discount is based off of the
following schedule;
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For a member of the Good Neighbor Pharmacy program (“GNP Program”), AMS will invoice ABC ***% of the “GNP Price” per the provided price list from AMS.
____________
*** Redacted pursuant to a Confidentiality Request with the United States Securities and Exchange Commission
For
non-GNP customers, AMS will invoice ABC ***% of “non-GNP Price” per the provided
price list from AMS.
When
requested and approved, each in writing, ABC will allow AMS permission to lower
the retail price for a promotion or special event pricing.
3.1.2 AMS
will invoice ABC for the end user’s purchase and ABC will xxxx thru the amount
of the purchase to the applicable End User with a standard payment term of 30
days, for reimbursement to ABC, ABC will pay AMS within 30 days upon receiving
an invoice.
3.1.3 Purchase Other Than Through
ABC Account Number. During the Term of this Agreement, if an End User
purchases one or more Kiosk Packages other than through their ABC account (e.g.,
a lease, cash, check), then for each of these End User purchases AMS will pay to
ABC a rebate off the purchase price for each Kiosk Package, The % rebate is
based on the following schedule:
For GNP
customers, AMS will pay to ABC a ***% rebate off the “GNP Price” per the provided
price list from AMS.
For
non-GNP customers, AMS will pay to ABC a ***% rebate off the “non-GNP Price” per
the provided price list from AMS.
Such
payments will be made by AMS to ABC within thirty (30) days of the end of the
month in which such End User Price was received by AMS. For purchases other than
through ABC Account Number, AMS shall enter into a Kiosk Purchase Agreement with
End Users to reflect the terms and conditions of the sale of its Kiosk(s)
Packages to such End Users, which such agreement shall be substantially in the
form attached hereto as Exhibit
A.
3.2 Sale of Additional Services
and Accessories to End Users. In the event End Users purchase additional
Services and/or Accessories from AMS, AMS will pay to ABC an amount equal to ***%
of all gross revenues received by AMS in connection with the sale of such
additional Services and Accessories. AMS will pay the foregoing amounts to ABC
on a monthly basis; such amounts to be equal to the gross revenues received by
AMS in the immediately preceding month for such additional Services and
Accessories.
3.3 ***
_______________
*** Redacted pursuant to a Confidentiality Request with the United States Securities and Exchange Commission
or Accessories or Services and the price of the same that was offered to a third
party, as well as the cost of the audit.
3.4 End User Prices.
During the Term of this Agreement and notwithstanding the Kiosk Purchase Price,
ABC shall be free to determine the End User Price for Kiosk Packages that ABC
charges to End Users.
3.5 Taxes. For those
Kiosk Packages sold to End Users pursuant to Section 3.1.1 above, ABC shall be
responsible for the collection of all sales, use or personal property taxes from
End Users. For those Kiosk Packages sold to End Users pursuant to Section 3.1.2
above or those Services or Accessories sold to End Users pursuant to Section 3.2
above, AMS shall be responsible for the collection of all sales, use or personal
property taxes from End Users. Neither party shall be responsible for any taxes
based on other party’s net income.
Section
4. Duties of ABC;
Reservations.
4.1 Marketing the Kiosk
Packages. ABC shall use commercially reasonable efforts to market the
Kiosks and shall be solely responsible for its costs relating to marketing the
Kiosk Packages.
4.2 Services to End
Users. In order for AMS to provide the Services to End Users, ABC shall
provide to AMS a complete list of all End Users, and shall update such list on a
monthly basis and deliver the updated End User list to AMS. ABC shall not be
responsible for providing any Services to End Users.
4.3 Competitive and Other
Products. During the Term of this Agreement, ABC will not market or sell
products that directly compete with the Kiosks.
Section
5. Duties of
AMS.
5.1 Technical Materials.
AMS shall provide to ABC such technical information in relation to the Kiosk
Packages and information relating to the advertising or marketing thereof as ABC
may reasonably require.
5.2 Order Fulfillment.
Upon execution of a valid Kiosk Purchase Agreement, AMS shall deliver the
applicable number of Kiosk Packages to an End "User within 2 to 6 weeks of the
delivery of the Kiosk Purchase Agreement or placement of an order for one or
more Kiosk Packages.
5.3 Services to End
Users. During the Term of this Agreement, AMS shall provide the Services
to End Users.
Section
6. Representations and
Warranties.
6.1 By AMS. AMS
represents and warrants to ABC that (i) it or its licensors have all of the
rights necessary to grant ABC the rights set forth in this Agreement; (ii) none
of the AMS
Property
infringes any intellectual property rights of any Person; (iv) the rights
granted to ABC hereunder do not, and will not during the term of this Agreement
violate any agreement or any applicable laws, including, but not limited to, any
export or import laws, and (v) it is authorized to enter into this Agreement and
grant the rights hereunder.
6.2 By ABC. ABC
represents and warrants to AMS that (i) it is authorized to enter into this
Agreement, and (ii) it will comply will all applicable laws relating to the
marketing of the Kiosks.
Section
7. Confidentiality and
Nondisclosure. In performing under this Agreement, each party may
disclose to the other confidential business and technical information related to
the business plans and methods of each party, both generally and as they relate
to the Kiosk Packages and the distribution thereof (the “Confidential
Information”). In addition to the foregoing, the Kiosk Purchase Price,
and any other information related thereto, shall be treated as the Confidential
Information of AMS.
Each
party agrees it shall not use, either directly or indirectly, the Confidential
Information provided by the other party except for the purposes contemplated by
this Agreement. Each party also agrees that it shall take all commercially
reasonable actions necessary to prevent the disclosure to any third party of the
Confidential Information provided by the other party. “Confidential Information”
shall not include any information that is (i) known to the receiving party prior
to disclosure by the other party, (ii) lawfully obtained after the date of this
Agreement by the receiving party from a third party who is not under any duty of
nondisclosure; (iii) generally available to the public; or (iv) lawfully
developed by the receiving party independent of information provided by the
other party.
Section
8. Term and
Termination.
8.1 Term. Unless
otherwise terminated as provided herein, the term of this Agreement shall
commence on the Effective Date and continue in effect for three (3) years (the
“Initial Term”). Thereafter, ABC, in its sole discretion, may renew the term of
this Agreement for 1 year (the “Renewal Term” and together with the Initial
Term, the “Term”) upon written notice to AMS prior to the expiration of the
Initial Term or any Renewal Term. If the Term of this Agreement is extended to a
Renewal Term, the parties agree to meet by telephone (or otherwise as the
parties may agree) prior to the expiration of the Renewal Term to discuss the
continuation of the Term, modifications to this Agreement or termination of this
Agreement.
8.2 ***
8.3 Termination for
Breach. Either party may terminate this Agreement by written notice to
the other party if the other party is in material breach of any of its material
obligations under this Agreement and fails to cure such breach within thirty
(30) days of receiving written notice of such breach, unless such breach is
incurable, in which event the non-breaching party may immediately terminate this
Agreement.
____________
*** Redacted pursuant to a Confidentiality Request with the United States Securities and Exchange Commission
8.4 Duties Upon
Termination. Upon termination of this Agreement for any reason whatsoever
(i) ABC shall cease marketing the Kiosk Packages; and (ii) each party shall
return to the other party the Confidential Information of such other
party.
8.5 Survival of Certain
Provisions. The parties acknowledge that certain provisions, by their
nature, are intended to survive termination of this Agreement, including, but
not limited to, each party’s duties as set forth in Section 8.4 and the
indemnification obligations set forth in Section 9.
Section
9. Indemnification. AMS
shall hold ABC, its affiliates and subsidiaries and each of their directors
officers managers, members, shareholders, employees representatives and agents,
harmless from all damages, judgments, liabilities, obligations, costs and
expenses (including, without limitation, reasonable attorneys’ fees and costs)
arising from any suit or claim made, or proceeding instituted, by any Person
against ABC. its affiliates or subsidiaries or each of their directors officers
managers, members, shareholders, employees representatives or agents with
respect to the Kiosk Packages, the Kiosk Purchase Agreements, or which results
from the negligence, misrepresentation or intentional acts of AMS.
Section
10. Insurance
Requirements. AMS agrees to maintain primary and noncontributing Products
Liability Insurance of not less man U.S. $5,000,000.00 per occurrence. Combined
Single Limit (Bodily Injury and Property Damage) including ABC and its
subsidiaries and affiliates as Additional Insured, including a Broad Form
Vendors Endorsement, with provision for at least 30 days’ prior written notice
to the additional Insured in the event of cancellation or material reduction of
coverage, and upon request promptly submit satisfactory evidence of such
insurance. All insurance coverage must be with a carrier acceptable to ABC, at
its sole discretion.
Section
11. Relationship of the
Parties. The relationship between AMS and ABC under this Agreement is
that of independent contractors. No party shall be, or represent itself to be,
for any purpose whatsoever, the following with respect to the other party: joint
venturer, franchisee, franchisor, partner, broker, employee, servant, agent or
representative. No party is granted the right or authority to assume or create
any obligation or responsibility, express or implied, on behalf of the other
party.
Section
12. Inspection of
Records. AMS and ABC agree to maintain complete and accurate records of
all transactions related to the conduct of each party’s respective business
pursuant to this Agreement (collectively, “AMS-ABC Records”).
Both parties will permit inspection of their respective AMS-ABC Records upon
reasonable notice during regular business hours for the purpose of resolving
business disputes. If based on any such inspection or audit it is determined
that either party has received excess amounts or not paid any earned, the party
shall immediately pay any such amount.
Section
13. General
Provisions.
13.1 Waiver. No waiver by
a party of any provision of this Agreement shall be considered a waiver of any
other provision, or any subsequent breach of the same or any other provision,
including the time for performance of any such provision.
13.2 Severability. If any
term, provision, covenant or condition of this Agreement is held through
arbitration or by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, the remaining provisions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
13.3 Notices. All notices
to be given by or made to the parties under this Agreement shall be effected by:
(i) personal delivery in writing; (ii) by facsimile; or (iii) overnight express
mail carrier. All notices shall be deemed communicated as of the date received.
Notices shall be addressed to the parties as their addresses appear
below:
If to
ABC: AmerisourceBergen
Corporation
0000 Xxxx
Xxxxx
Xxxxxxxxxxxx,
XX 00000-0000
Attn:
Facsimile:
With a
copy
to: AmerisourceBergen
Corporation
0000
Xxxxxx Xxxxx
Xxxxxxxxxxxx,
XX 00000-0000
Attn:
General Counsel
Facsimile:
If to
AMS: Mountain
Capital, LLC
0000
Xxxxxxx Xxxxxx, Xxxxx 0
Xxxx
Xxxxxx, XX 00000
Attn:
Facsimile:
With a
copy
to: The
Law Office of Xxxx X. Xxxxxx, P.C.
0000
Xxxxx xx Xxxxx Xxxx, Xxxxx 000-000
Xxxxxxx,
XX 00000
Attn:
Xxxx X. Xxxxxx, Esq.
Facsimile:
(000)
000-0000
or to
such other address as any party shall furnish to the others by notice given in
accordance with this Section 13.3.
13.4 Interpretation. The
terms and provisions of this Agreement shall be construed as a whole according
to their respective meanings, and shall not be construed against any party based
on the fact that such party drafted one or more terms and provisions of this
Agreement. Further, the parties acknowledge that each of them has had an
opportunity to consult with counsel regarding the meaning and application of
terms and provisions of this Agreement.
13.5 Governing Law, Forum
Selection and Jurisdiction. This Agreement shall be construed and
interpreted according to the internal laws of the Commonwealth of Pennsylvania
without giving effect to its conflicts of laws provisions. The parties hereby
consent to jurisdiction of Pennsylvania’s courts and, for any litigation that
may arise out of this Agreement, stipulate to venue in the state and federal
courts serving Xxxxxxx County, Pennsylvania, as the sole proper
venue.
13.6 Entire Agreement.
This Agreement supersedes all negotiations, commitments and writings prior to
the date hereof pertaining to the subject matter of this Agreement This
Agreement shall not be changed or modified in any manner, except by mutual
consent in writing of subsequent date signed by duly authorized representatives
of the parties to this Agreement.
13.7 Counterparts. This
Agreement may be executed in any number of counterparts, all of which shall be
construed together to constitute a single agreement binding the
parties.
13.8 Assignment. AMS may
not assign this agreement without the prior written consent of ABC. This
Agreement shall inure to and be binding on the successors and assigns of each
party, as applicable.
13.9 Section Headings. The
section headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement.
13.10 Publicity. Neither
party shall have the right to issue a press release, statement or publication
regarding the terms and conditions of or the existence of this
Agreement.
[Signatures
appear on the next page.]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their duly authorized representatives on the date first written
above.
AMERISOURCEBERGEN
CORPORATION
By: /s/ Xxxx Xxxxxxx
Print Name: Xxxx Xxxxxxx
Title: Director Pharmacy Support
MOUNTAIN CAPITAL, LLC
By: /s/ Xxxx Xxxxxxxxx
Print Name: Xxxx Xxxxxxxxx
Title: President
