Exhibit 99.2
INGEN TECHNOLOGIES & INVACARE SUPPLY GROUP
MEDICAL SUPPLY MASTER DISTRIBUTION AGREEMENT (8-K EXHIBIT ONLY)
This Medical Supply Master Distribution Agreement ("Agreement") is made and
executed by and between Ingen Technologies, Inc. ("Ingen"), with its principal
headquarters at 000 Xxxx Xxxxxx Xxxx Xxxx, Xxxxxxxx, XX. 00000 and Invacare
Supply Group, Inc. ("ISG"), having its principal place of business at 00 Xxxxxxx
Xxxx Xxxx, Xxxxxxxxx, XX, 00000-0000.
(*) = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT AND ADDENDA,
MARKED BY AN ASTERISK (AND BOLDED TYPE IN THE SEPARATE FILING), HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION ("SEC")
PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
TERMS AND CONDITIONS
A) TERM AND TERMINATION
a) This Agreement shall have a three (3) year term commencing on August
1, 2007 and ending on July 31, 2010, unless earlier terminated pursuant to
this Agreement's provisions. If this Agreement has not earlier terminated,
or if neither party has notified the other by July 1, 2010 that it does
not desire to renew this Agreement, then at the end of the initial term
this Agreement shall be continue on a month to month basis until
terminated by either party upon giving the other party a thirty (30) day
notice of termination.
b) Either party may terminate this agreement with or without cause upon
giving the other party a minimum of ninety (90) days prior written notice
of such termination.
c) Ingen may terminate this Agreement upon thirty (30) days prior
written notice if the condition precedent in Section 3(b) occurs.
d) Either party may terminate this Agreement pursuant to its rights
under Section 20 (Participation in Health Care Programs).
B) DISTRIBUTION OFINGEN PRODUCT
a) Ingen hereby appoints ISG as its exclusive distributor of the Ingen
Oxyview ("Oxyview" or "Products") in Xxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxxx,
Xxxxxxxxx, Xxx Xxxxxxx and Asia (the "Territory"). Ingen hereby represents
and warrants that it has obtained all necessary regulatory approvals in
the USA to sell the Oxyview in the USA. For those areas outside of the
USA, Ingen is in the process of ISO 13485 Certification to sell Oxyview;
although Oxyview has received FDA 510k clearance, and Ingen is DHS
Certified, Ingen believes that the device may require ISO 13485
Certification for international sales. Ingen is at the time of contracting
reviewing a proposal from an ISO Consulting Firm to assist in Ingen's ISO
13485 Certification. ISG and Ingen will work cooperatively to identify
what international requirements exist to be met before Oxyview may be
sold. If during the term of this Agreement Ingen obtains regulatory
approvals in additional countries or areas to sell Oxyview during the term
of this Agreement, the Territory and ISG's exclusivity shall be expanded
to include such countries or areas if requested by ISG.
b) As a permitted exception to the appointment grant, Ingen can sell
direct to aviation, military and fire departments that are located in the
Territory -- see section 5 for more details on attribution of such direct
to consumer sales between the parties.
c) ISG accepts such appointment. ISG shall use reasonable commercial
efforts to exploit the rights granted to it in this Agreement and to
implement a plan for commercializing Oxyview in the Territory.
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INGEN TECHNOLOGIES & INVACARE SUPPLY GROUP
MEDICAL SUPPLY MASTER DISTRIBUTION AGREEMENT (CONT.)
d) Ingen acknowledges and agrees that ISG is not prohibited from
selling or promoting products that are competitive with Oxyview.
3. PURCHASES
a) ISG agrees to an initial purchase of (*) for each unit. The initial
purchase will spread over a period of sixty (60) days; ISG shall instruct
Ingen on the timing of all such shipments.
b) ISG presently intends to purchase an additional (*) per unit within
eight (8) months of this Agreement's effective date. Any failure by ISG to
make such intended additional purchases within such period will not
constitute a breach of this Agreement and ISG will not be obligated to
Ingen for any monetary shortfall payment or other penalty or liability of
any kind related to such failure; however, Ingen may at its option
terminate this Agreement upon thirty (30) days notice in the event of such
failure.
c) Following a twelve (12) month sales history, if the Agreement is
still in effect, ISG and Ingen will create goals for the remaining length
of the contract. No automatic shipments will be accepted by ISG; orders
will solely be placed based on customer demand. ISG will supply detailed
forecast/projections based solely on past/current sales performance. ISG
is not responsible for significant sales decreases or increases due to
customer shifts. All orders will be accompanied with a purchase order.
d) Ingen agrees to provide ISG with (*) "Oxyview" units ((*) units per
year) for sampling (demo) purposes, at no charge. Ingen agrees to also
send out sampling (demo) units as part of their marketing effort. ISG
shall not sell such units.
4. PRICING PROGRAM; CONFIDENTIALITY
a) All sales of product by Ingen to ISG following the effective dates
of this agreement shall be governed by and subject to the provisions of
this Agreement. Ingen will sell product to ISG at the prices as set forth
in Addendum "A" attached to this agreement. All prices are to remain firm
during the term of the Agreement unless otherwise negotiated between Ingen
and ISG.
b) The parties have entered into a mutual non-disclosure agreement
simultaneous with this Agreement and it is hereby incorporated herein by
this reference.
5. SALES / CUSTOMERS
a) Ingen agrees to deliver all existing customers of "Oxyview" to ISG.
Ingen agrees to deliver all future Oxyview purchase inquiries to ISG.
Further, Ingen will deliver for the benefit of ISG all Ingen direct to
consumer sales made by Ingen via PayPal and other methods; ISG and Ingen
finance personnel shall confer on revenue recognition, sales tax and other
related issues and reach agreement on proper treatment of same.
b) Ingen agrees to inform ISG of GSA acceptance. Currently the GSA
application was submitted and is pending pursuant to $(*) in sales. If
accepted, ISG shall be entitled to supply product under such award.
c) Ingen agrees to a sales incentive for ISG, as set forth in Addendum
"B".
(*) = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT AND ADDENDA,
MARKED BY AN ASTERISK (AND BOLDED TYPE IN THE SEPARATE FILING), HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION ("SEC")
PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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INGEN TECHNOLOGIES & INVACARE SUPPLY GROUP
MEDICAL SUPPLY MASTER DISTRIBUTION AGREEMENT (EMIT.)
6. ISG CUSTOMER SERVICE
a) ISG must be available to receive orders between the hours of
8:00a.m. and 8:00 p.m. (EST) Monday through Friday.
b) ISG will provide necessary support to ensure that the implementation
of the program is satisfactory, including instructions to locations on
policies and procedures, billing and problem resolution.
7. INGEN MARKETING
a) Ingen agrees to continue an advertising campaign at its current
monetary level, for "Oxyview" for the next 24 months.
b) Ingen agrees to work with ISG's marketing department to target
opportunities. In furtherance of that agreement, Ingen will make available
its knowledgeable sales personnel to ISG, to provide training to and field
sales support of ISG sales personnel.
c) Ingen will supply ISG an advertising co-op allowance of 2% of total
purchases, upon ISG proving proof of advertising expenditures that promote
Oxyview.
d) Ingen will provide ISG with technical support and service.
8. SHIPPING A ND DELIVERY
Ingen shall pay ground or air freight on all into stock orders to all
ISG's distribution centers.
9. PAYMENT TERMS
a) Terms shall be 2% Net 30 or Net 45.
b) There shall be a 1 .5% interest charge for any unpaid receivable
over 60 days.
10. RIGHT OFFIRSTREFUSAL FOR ADDITIONAL INGEN PRODUCTS
Ingen hereby grants ISG the right of first refusal for exclusive
distribution rights in the Territory for Ingen's proposed new product
"OxyAlert" and any future products that Ingen may develop and seek to
market during the term of this Agreement in the Territory.
11. RESTOCKING FEE & RETURN OF PRODUCT
a) All returned Product(s) will be in their original carton and in
re-sellable condition.
b) Products returned within one thirty (30) days of the invoice date
will not be subject to a restocking fee.
c) All Products returned after thirty(30) days from the invoice date
will be subject to a ten percent (10%) restocking fee, other than returns
made as a result of errors in shipping by Ingen. There are no returns
allowed after ninety (90) days.
d) ISG will be responsible for paying freight on all return products
other than returns required by errors in shipment by Ingen.
12. LIABILITY INSURANCE: INDEMNIFICATION
a) During this Agreement and for five (5) years after any termination,
Ingen shall maintain product liability insurance with a financially sound
insurance carrier in the amount of at least $1,000,000 per occurrence and
at least $2,000,000 in the aggregate. ISG and Ingen shall meet from time
to time to determine whether such amounts are sufficient depending on
sales levels. Ingen must issue a certificate of insurance naming "Invacare
Supply Group, Inc." as a certificate holder and named insured, and which
shall state complete vendor coverage.
(*) = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT AND ADDENDA,
MARKED BY AN ASTERISK (AND BOLDED TYPE IN THE SEPARATE FILING), HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION ("SEC")
PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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INGEN TECHNOLOGIES & INVACARE SUPPLY GROUP
MEDICAL SUPPLY MASTER DISTRIBUTION AGREEMENT (CONT.)
b) Ingen shall indemnify and hold harmless ISG, its directors,
officers, employees, agents and representatives from and against any
obligations, costs, claims, judgments and expenses (including reasonable
attorney's fees, expert fees and related expenses) arising out of or
resulting from or in connection with: ( i ) any breach of this Agreement
by or on behalf of Ingen, its directors, officers, employees, agents or
representatives, ( ii ) any negligent act or omission by, or willful
misconduct of, Ingen, its directors, officers, employees, agents or
representatives, ( iii ) any warranty, condition, representation,
indemnity or guarantee made or granted by Ingen, its directors, officers,
employees, agents or representatives with respect to Oxyview, (iv) any
claims, losses, damages or expenses which may be made against ISG arising
from a defect in any Oxyview unit, (v) claims, losses, damages or expenses
which may be made against ISG arising from any alleged or actual
infringement by Ingen of patent rights, trademarks or copyrights of a
third party, and ( vi ) a voluntary recall, or any actions brought by any
local, state, federal or foreign government agency concerning the Oxyview.
c) ISG shall indemnify and hold harmless Ingen, its directors,
officers, employees, agents and representatives from and against any
obligations, costs, claims, judgments and expenses (including reasonable
attorney's fees, expert fees and related expenses) arising out of or
resulting from or in connection with: (i) any breach of this Agreement by
or on behalf of ISG, its directors, officers, employees, agents or
representatives, (ii) any negligent act or omission by, or willful
misconduct of, ISG, its directors, officers, employees, agents or
representatives.
d) The provisions of this Section shall survive termination of this
Agreement for a period of five (5) years.
13. LIMITATION OF WARRANTIES
There are no warranties, expressed or implied, including a warranty of
merchantability or fitness for a particular purpose, on any Ingen Products
provided to ISG except those manufacturer's warranties which may be
explicitly set forth in the description and directions for an Ingen
product. This disclaimer of warranties includes, but is not limited to,
any warranty regarding; the merchantability of the any Ingen products or
the fitness for any particular purpose.
14. BINDING EFFECT OF A GREEMENT; GOVERNING LAW
This Agreement shall be binding upon, and shall inure to the benefits of
the other parties, their personal and legal representatives, and their
heirs, successors and permitted assigns. The laws of the State of
Massachusetts shall govern this Agreement and its construction and
interpretation, without regard to conflicts of law rules.
15. ASSIGNMENT
Neither party shall assign, sell, transfer or otherwise alienate this
Agreement, or any duty, obligation or right under this Agreement, without
the express written consent of the other party, which consent shall not be
unreasonably withheld or delayed.
(*) = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT AND ADDENDA,
MARKED BY AN ASTERISK (AND BOLDED TYPE IN THE SEPARATE FILING), HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION ("SEC")
PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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INGEN TECHNOLOGIES & INVACARE SUPPLY GROUP
MEDICAL SUPPLY MASTER DISTRIBUTION A2REEMENT (CONT.)
16. RELATIONSHIP BETWEEN PARTIES
Each party hereto is an independent contractor, and nothing in this
Agreement shall create or be construed to create a partnership, joint
venture, or agency relationship. Ingen does not grant to ISG any authority
of any kind to bind Ingen in any respect whatsoever. ISG does not grant to
Ingen any authority of any kind to bind ISG in any respect whatsoever.
17. PA RA GRA PH HEADINGS
The headings of the paragraphs herein shall be for assistance purposes
only and shall not alter, change or modify the meaning of the written
paragraphs herein.
18. SEVERABILITY
In the event that any word, part, paragraph, or other portion of this
Agreement shall be determined to be invalid, unlawful or inoperable, the
remainder of this Agreement shall be severable, valid and effective as if
such invalid, unlawful, or inoperable work, part, paragraph, or other
portion of this Agreement was not included herein.
19. NO WAIVER
No failure to exercise and no delay in exercising any right, power or
privilege granted under this Agreement shall operate as a waiver of such
right, power or privilege. No single or partial exercise of any right,
power or privilege granted under this Agreement shall preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege.
20. RIGHT TO PARTICIPATE IN HEALTH CARE PROGRAMS
a) Ingen represents and warrants that it is not debarred, suspended or
otherwise ineligible to participate in any state or federal health care
program. In the event that Ingen, during the term of this Agreement,
becomes the subject of any investigation by any health care program agency
(such as but not limited to the Office of Inspector General, Medicare or
Medicaid), or becomes debarred, suspended or otherwise ineligible to
participate in any health care program, ISG may terminate this Agreement
immediately, without any notice or right to cure by Ingen.
b) ISG represents and warrants that it is not debarred, suspended or
otherwise ineligible to participate in any state or federal health care
program. In the event that ISG, during the term of this Agreement, becomes
the subject of any investigation by any health care program agency (such
as but not limited to the Office of Inspector General, Medicare or
Medicaid), or becomes debarred, suspended or otherwise ineligible to
participate in any health care program, Ingen may terminate this Agreement
immediately, without any notice or right to cure by ISG.
21. ENTIRE A GREEMENT
This Agreement, and the attachments hereto and incorporated herein,
constitutes the entire agreement and understanding between the parties,
and supersedes all prior oral and written understandings, representations
and discussions between Ingen and ISG. This Agreement may not be changed
or modified except by subsequent written amendment executed by both Ingen
and ISG.
(*) = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT AND ADDENDA,
MARKED BY AN ASTERISK (AND BOLDED TYPE IN THE SEPARATE FILING), HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION ("SEC")
PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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INGEN TECHNOLOGIES & INVACARE SUPPLY GROUP
MEDICAL SUPPLY MASTER DISTRIBUTION AGREEMENT (CONT.)
EACH PARTY HAS READ, UNDERSTOOD AND AGREED TO THIS AGREEMENT BY ITS DULY
AUTHORIZED REPRESENT ATIVE SIGNING BELOW:
INGEN TECHNOLOGIES, INC.
Xxxxx X. Sand CEO & Chairman
--------------------------------- ---------------------------------
Name Title
/s/ Xxxxx X. Sand 8/13/07
--------------------------------- ---------------------------------
Signature Date
INVACARE SUPPLY GROUP, INC.
Xxxxxxx Xxxxx Director of Marketing
--------------------------------- ---------------------------------
Name Title
/s/ Xxxxxxx Xxxxx 8/14/2007
--------------------------------- ---------------------------------
Signature Date
ADDENDUMS A & B FOLLOW THIS SIGNATURE PAGE
[REMAINER OF PAGE INTENTIONALLY LEFT BLANK.]
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INGEN TECHNOLOGIES & INVACARE SUPPLY GROUP
MEDICAL SUPPLY MASTER DISTRIBUTION AGREEMENT
ADDENDUM A
PRICING PROGRAM - (*)
(*) = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT AND ADDENDA,
MARKED BY AN ASTERISK (AND BOLDED TYPE IN THE SEPARATE FILING), HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION ("SEC")
PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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INGEN TECHNOLOGIES & INVACARE SUPPLY GROUP
MEDICAL SUPPLY MASTER DISTRIBUTION AGREEMENT
ADDENDUM B
SALES INCENTIVE:
Ingen Technologies agrees to pay a sales incentive to Invacare Supply Group,
inc. (ISG) as set forth below:
o Purchases> $300,000 annually: 1% rebate paid to ISG.
o Purchases> $500,000 annually: 1.5% rebate paid to ISG.
o Purchases> $750,000 annually: 2.0% rebate paid to ISG.
o Purchases> $1,000,000 annually: 2.5% rebate paid to ISG.
If a rebate is earned, Ingen will pay the rebate to ISG within thirty (30) days
of the end of the annual period.
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