EXHIBIT 10.8
EXCLUSIVE MANUFACTURING, SALES, LICENSING AND SOFTWARE OWNERSHIP AGREEMENT
This exclusive manufacturing, sales, and licensing and software
ownership agreement(hereafter Agreement)is entered into as of the 22nd day of
March, 2004 by and between MEDTRAK TECHNOLOGIES, INC., and Arizona Corporation
(hereafter MedTrak) and EYE DYNAMICS, Inc., a Nevada corporation (hereafter
EDI).
RECITALS
WHEREAS, EDI is engaged in the manufacture of various medical devices
and MedTrak is engaged in the marketing and sales of various medical devices;
and
WHEREAS, the parties, having previously entered into an agreement on or
about March 19, 2001, documenting their business relationship, and tend that
this agreement shall affect the novation of superseded the prior agreement; and
WHEREAS, MedTrak desires to have EDI be its sole and exclusive
manufacturer of infrared/video VNG systems (hereafter the VNG systems); and
WHEREAS no quotas or established sales numbers will be applicable to
MedTrak, MedTrak agrees that an annual target of 300 systems is appropriate.
This shall be comprised of MedTrak 100 units, TRAK Series 150 units and IR/Video
50 units. MedTrak shall use its best efforts to achieve these target numbers.
NOW, THEREFORE, in consideration of the matters set forth above and the
mutual covenants, promises, agreements, representations, and warranties of the
parties hereto, the parties to covenant, promise, agree, represent, and warrant
as follows:
1. ACCURACY AND INCORPORATION OF RECITALS. The foregoing recitals are
true and correct and are incorporated herein as part of this agreement.
2. EXCLUSIVE DEALINGS. EDI agrees to sell the VNG systems, and all
Electronystagmography systems and accessories developed by it, solely through
MedTrak and those entities specifically approved in writing by MedTrak. MedTrak
agrees to market and sell only those electronystagmography systems and
accessories thereto manufactured by EDI. This section is subject to the
provisions of paragraph six, below.
3. ENG SYSTEMS. The ENG systems referred to in this agreement are the
two channel and four Channel infrared video ENG systems, which may be referred
to as videonystagmographs, complete with software and accessories, together with
software and hardware upgrades (which will hereafter be referred to individually
and collectively as the Products).
4. LICENSE OF CONFIDENTIAL AND PROPRIETARY INFORMATION.
4.1 CONFIDENTIAL INFORMATION. EDI has developed, on its own accord
and is in possession of certain proprietary and confidential
source codes, schematics, and lists of contractors
(Confidential Information) related to the Product that is
utilized in the manufacture of the MedTrak and the EDI TRAK
Series and full clinical infrared/video VNG Systems. EDI
shall, within 15 days of execution of this Agreement deliver
the Confidential Information to Anker, Reed, Xxxxx &
Xxxxxxxxx, a Law Corporation (hereafter Xxxxx, Xxxx) for
storage and safekeeping.
4.2 ACCESS TO EDI'S CONFIDENTIAL AND PROPRIETARY INFORMATION.
MedTrak acknowledges that it and its employees will be exposed
to and have access to proprietary information and trade
secrets (which together will hereafter be referred to as
Proprietary Information), provided to it by and belonging to
EDI, during the term of this Agreement.
4.2.1 MedTrak agrees to use such Confidential and
Proprietary Information only to the extent necessary
to perform its marketing and sales obligations under
this Agreement and will not disclose, during the term
of this Agreement, and at all times thereafter, any
of the Confidential and Proprietary Information to
any third party without the prior written consent of
EDI.
4.2.2 MedTrak acknowledges that irreparable injury will
result to EDI in the event of a breach of this
section four, and in the event of such breach, EDI
will be entitled to an injunction to restrain the
violation by MedTrak, its employees, and all persons
acting for or with it. Injunctive relief will be in
addition to any other remedies and damages available
4.3 ACCESS TO MEDTRAK'S PROPRIETARY INFORMATION. EDI acknowledges
that it and its employees will be exposed to and have access
to confidential information and trade secrets (which together
will hereafter be referred to as Proprietary Information),
provided to it by and belonging to EDI, during the term of
this Agreement.
4.3.1 EDI agrees to use such Proprietary Information only
to the extent necessary to perform its development
and manufacturing obligations under this Agreement
and will not disclose during the term of this
agreement and at all times thereafter, any of the
Proprietary Information to any third party without
the prior written consent of MedTrak
2
4.3.2 EDI acknowledges that irreparable injury will result
to MedTrak in the event of a breach of this section
four, any event of such breach MedTrak will be
entitled to an injunction to restrain the violation
by EDI, its employees, and all persons acting for or
with it. Injunctive relief will be in addition to any
other remedies in damages available.
5. OWNERSHIP AND LICENSES OF SOFTWARE. MedTrak shall be the exclusive
owner of the software, including upgrades, used in and by the MedTrak Brand and
EDI TRAK Series two channel ENG systems. All right, title, and interest,
including copyright rights, and said software is hereby vested, and future
upgrades will be vested, in MedTrak. MedTrak hereby grants EDI an exclusive
license to use the software during the effective term of this Agreement
6. INABILITY OF EDI TO PROVIDE PRODUCTS. In the event EDI is not
capable of meeting MedTrak's sales requirements under paragraph two, above, if
EDI shall, within ten (10) days, inform MedTrak of such inability to perform.
Within ten (10) days after so informing MedTrak, EDI shall direct Xxxxx, Xxxx to
make the Confidential Information available to MedTrak so as to ensure MedTrak's
ability to continue to manufacture the Products. If the inability to provide
products is temporary, EDI may grant permission to MedTrak to have the Products
manufactured by an alternative supplier, which supplier must first be approved
by EDI. In the event that MedTrak utilizes the Confidential Information made
available to them pursuant to paragraph 4.1, above, MedTrak will compensate EDI
for each Product not manufactured by EDI in an amount equal to 10% of MedTrak's
then current cost to purchase the Product from the EDI
7. Warranties, Support and Repairs. EDI shall provide each end-user of
the Product with EDI's standard warranty and provide technical support and
repairs consistent with its warranty obligations.
7.1 MEDTRAK WARRANTIES. MedTrak will not make any representation or
give any warranties or guarantees to any person with respect to any of
the Products or related services, other than those representations,
warranties, or guarantees that EDI has specifically authorized.
8. PURCHASE ORDERS. Each sale of any product hereunder shall be
initiated by MedTrak's delivery to EDI of a written purchase order specifying,
in reasonable detail, the type, quantity, delivery date, and shipping
destination information for the Product ordered (hereafter Purchase Order). No
Purchase Order will be binding an EDI until accepted, in writing by EDI. If any
Purchase Order is not rejected, in writing, delivered to MedTrak by EDI within
three (3)business days of EDI's receipt of the Purchase Order, said Purchase
Order will be deemed excepted as submitted.
9. DELIVERY.
3
9.1 TYPE OF DELIVERY. All Products delivered will be FOB EDI's
plant or other place of shipment. EDI will use its best
efforts to deliver Products by the applicable delivery date to
the destination specified in each Purchase Order. All customs
duties, costs, taxes, insurance premiums, and other expensive
expenses relating to such transportation and delivery will be
at the recipients expense.
9.2 PACKAGING. EDI will package the product in its standard
shipping packages.
9.3 SET UP AND COMPLIANCE. MedTrak will be responsible for
assisting end-users with setting out and ensuring Product
compliance with Product specifications at the time of setup.
10. PRICE, COMMISSION, AND PAYMENT.
10.1 PRICE. EDI will establish a wholesale price for each Product,
which will be set forth on exhibit A. attached hereto. MedTrak
will pay EDI the wholesale price for each product sold by
MedTrak. Payment terms shall be NET 15 days after date of
invoice. EDI will only have the right to sell the Products to
the United States military and government, ENT physicians,
Otologists, and Audiologists. In addition, EDI will continue
to sell to overseas clients for export of products.
10.2 COMMISSION. EDI will pay MedTrak a commission of four thousand
dollars ($4000) for each sale of an ENG system sold by EDI.
10.3 PAYMENT. EDI to make all payments due hereunder to MedTrak on
the 15th day of each month for all sales paid for in the
previous month.
10.4 LEADS. Leads shall be registered with MedTrak and shall be
controlled and distributed at the discretion of MedTrak.
11. TERMINATION.
11.1 TERM. Unless earlier terminated pursuant to the terms thereof,
this Agreement will continue in effect for a period of 10
years (the Initial Term) and will be renewed for three
successive three year periods (Additional Terms), thereafter
unless notice of termination is given, in writing, by either
party at least 90 days prior to the end of the Initial Term or
any Additional Term, as the case may be.
11.2 TERMINATION. This Agreement may be terminated upon mutual
written agreement of the parties.
11.3 DEFAULT. If either party materially defaults in the
performance of any material agreement, condition, or covenant
of this Agreement, and such default or noncompliance will not
have been remedied, or steps initiated to remedy the same to
the other parties reasonable satisfaction within 30 days after
receipt of notice specifying the default, the party not in
default may terminate this agreement.
4
12. INDEMNIFICATION. The parties agree that each party is solely
responsible for the performance of its duties, and each agrees to indemnify and
hold the other harmless from and against any and all claims asserted against the
other for loss or damage to property including claims for economic and business
injury, to persons or firms and all injury or death to third persons, including
all expenses incident to any of the foregoing claims, in any way arising out of
or relating to the conduct of such party's business and performance under this
Agreement. Each party further agrees to defend the other and the other's agents
and employees from and against any claim, demand, cause of action, damage, loss,
cost or expense arising from or in connection with its actions or failures to
act. Neither party may take any action that would have the effect of causing the
other to be in violation of any rules, decrees, laws, or regulations.
13. INJUNCTIVE RELIEF. In the event the EDI breaches or threatens to
breach its obligations (a) to maintain the confidentiality of information
provided to it by MedTrak or (b)of MedTrak's copyright rights, MedTrak will be
entitled to an injunction to restrain the violation or threatened violation by
EDI, its principals, or its employees. Injunctive relief will be in addition to
any other remedies and damages available. All available remedies will be
cumulative.
14. MISCELLANEOUS.
14.1 ENTIRE AGREEMENT. This Agreement contains the entire agreement
of the parties regarding the subject matter hereof and
supersedes all prior agreements, understandings, and
negotiations regarding the same.
14.2 ASSIGNMENT. This Agreement may not be assigned by either party
without the prior written consent of the other party.
14.3 SEVERABILITY. If any provision of this Agreement will be held
illegal or unenforceable, that provision will be limited or
eliminated to the minimum extent necessary so this Agreement
will otherwise remain in full force and effect.
14.4 FURTHER ASSURANCES. Each party hereto agrees to execute,
acknowledge, and deliver such further instruments, and to do
all such other acts as may be necessary or appropriate in
order to carry out the purposes and intent of this Agreement.
14.5 USE OF PARTY'S NAME. No right, express or implied, is granted
by this agreement to either party to use in any manner not
expressly provided for herein the name of the other party or
any other trademark or trade name of the other in connection
with the performance of this agreement.
5
14.6 NOTICE AND REPORTS. All notices, demands, requests, elections
or other communications required or permitted to be given by
any party to the other shall be in writing and shall be (a)
personally delivered; (b) sent via facsimile transmission; or
(c) deposited in the United States mail, first-class certified
postage prepaid, return receipt requested, and addressed to
the parties as follows:
To EDI: 0000 X. 000xx Xxxxxx, Xxxxxx 000
Xxxxxxxx, XX 00000
Facsimile: 310.328.0697
To MedTrak: 00000 X. Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000.000.0000
Notices, demands, requests, elections, or other communications will, if
personally delivered, be effective upon receipt; if mailed, the
effective upon the earlier of (a) actual receipt, (b) four days after
first being deposited in the United States mail as indicated by the
postmark thereon; or (c)if sent via facsimile, the effective upon
delivery so long as the sender's facsimile machine provides written
proof of successful transmission. Notice of such change of address is
in the manner provided for the giving of other notices.
14.7 RELATIONSHIPS OF THE PARTIES. Nothing contained in this
agreement is intended to be construed so as to constitute an
EDI and MedTrak as partners or joint venturers with each
other. Either party hereto shall have any express or implied
right or authority to assume or create any obligations on
behalf of or in the name of the other party or to buy in the
other party to any contract, agreement, or undertaking with
any third party.
14.8 WAIVER AND MODIFICATION. The waiver by either party of a
breach of any provision contained herein will in no way be
construed as a waiver of any subsequent breach of such
provision or the waiver of the provision itself. This
Agreement may not be changed, modified, amended, or
supplemented except by written instrument signed by both
parties.
14.9 APPLICABLE LAW. This agreement shall be governed by and
construed in accordance with the laws of the State of Arizona,
without regard to conflict of laws provisions. Venue for any
action to enforce or interpret the provisions of this
agreement shall be Phoenix, Arizona. The prevailing party in
any legal action to enforce or interpret this agreement shall
be entitled to reasonable costs and attorney's fees.
14.10 ATTORNEY'S FEES. If any action at law or in equity or by
alternative dispute resolution mechanism, including an action
for declaratory relief, is brought to enforce or interpret the
provisions of this agreement, prevailing party, or
substantially prevailing party, will be entitled to reasonable
costs, expenses, and attorney's fees in addition to any other
relief to which the party may be entitled. The attorney's fees
may be set by the tribunal in the same action or a separate
action brought for that purpose.
6
14.11 CAPTIONS. Paragraph captions are for convenience only and no
way to be construed to define, limit, or affect the
construction or interpretation hereof.
14.12 FORCE MAJEURE. A party shall not be liable for nonperformance
or delay in performance (other than of obligations regarding
payment of money or confidentiality) caused by any event
reasonably beyond the control of such party including, but not
limited to wars, hostilities, revolutions, riots, civil
commotion, national emergency, strikes, lockouts,
unavailability of supplies, epidemics, fire, flood,
earthquake, force of nature, explosion, embargo, or any other
act of God, or any law, proclamation, regulation, ordinance,
or other act or order of any court, government or governmental
agency.
14.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original
as against any party whose signature appears here on, and all
of which will together constitute one and the same instrument.
This Agreement will become binding in one or more counterparts
hereof, individually or taken together, they are the
signatures of all the parties reflected here on as the
signatories.
IN WITNESS WHEREOF, the parties have executed this agreement to be effective as
of the date first written above.
MEDTRAK TECHNOLOGIES, INC. EYE DYNAMICS, INC.
an Arizona corporation, a Nevada corporation,
/S/ XXX XXXXXXXXX /S/ XXXXXXX X. XXXXXXXX
----------------- -----------------------
Xxx Xxxxxxxxx, Ph.D., Member Xxxxxxx X. Xxxxxxxx, President
7
