Exhibit 10.57
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MASTER PRODUCT PURCHASING AGREEMENT
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This Agreement, to take effect as of the date of its signature by
both parties hereto, is by and between VeriChip Corporation, a Delaware,
U.S.A. corporation having offices at 000 Xxxxx Xxxx Xxx, Xxxx Xxxxx, XX
00000, Xxxxxx Xxxxxx of America (hereinafter referred to as "VeriChip" or
the "Company"), and Metro Risk Management, an Florida Corporation, with
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principal offices at 000 Xxxxxxxx Xxxxxx, Xxxxx, XX 00000 (hereinafter
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referred to as "Purchaser"). Purchaser and the Company may hereinafter be
referred to as the "Parties" and individually, as a "Party".
WITNESSETH:
WHEREAS, VeriChip markets highly sophisticated identification devices
and readers; and
WHEREAS, Purchaser wishes to purchase, for its own use or for
promotion and sale within the United States, the Company's products listed
in EXHIBIT "A" attached hereto (the "Products"); and the Company wishes to
make sell such Products, subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions hereinafter contained, the Parties hereby agree as follows:
SECTION 1. DEFINITIONS
In this Agreement, capitalized terms shall have the meanings set forth in
this Section 1. Definitions, or elsewhere in the provisions of this
Agreement:
(a) "Agreement" means this "International Product Purchasing
Agreement", and any and all Exhibits referenced herein, signed by
both Parties.
(b) "Company Confidential Information" means all of the Company's
information already in the possession of, or subsequently obtained
by, Purchaser, either (1) in writing and marked with a restrictive
legend, such as "Confidential", or (2) in writing, orally, visually
or by delivery of items which are, at the time of disclosure or
within (thirty) 30 days after its disclosure, identified as
confidential information, all to the extent that such information
or material has not been made publicly available by the Company.
The use of "Company Confidential Information" is subject to the
provisions of Section 9, hereof.
(c) "Date of Delivery" is the date the Product ordered by Purchaser is
delivered F.O.B. Miami, Florida, U.S.A. to Purchaser's agent.
(d) "End User" or "User" is anyone who acquires Products for its, his
or her own use and not for resale.
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(e) "Price List" means the list of the Company's wholesale list price
for the Products, as quoted by the Company from time to time. The
Company's List Price in effect as of the date hereof is attached
hereto as EXHIBIT "B" - Price List.
(f) "Product" or "Products" means each of the Company's product or
products listed in EXHIBIT "A" - Products, attached hereto, and any
copy or part thereof, documentation, updates, or other materials
delivered to Purchaser by the Company in conjunction with the
Products. The Company may alter, improve, change or discontinue any
of the Products at any time.
(g) "Term" shall mean the period while this Agreement is in effect,
i.e. from the date it is executed until terminated pursuant to
Section 11.14.
(g) "Trademarks" means any trademarks, service marks and trade names
which the Company may at any time have adopted, used or registered,
which identify either the Company or the Products, or are used by
the Company in relation to and in connection with the Products.
SECTION 2. PARTIES' RELATIONSHIP
The Parties hereby agree that:
2.1 Purchaser is not an agent of the Company. This Agreement does not
constitute a joint venture, agency or partnership between the
Parties, nor does it create an employer-employee relationship.
Neither Party is a legal representative, partner, franchisee,
employee or associate of the other, legally or otherwise.
2.2 Neither Party has the power to assume nor will assume or create any
obligations on behalf of the other, nor make any representations or
warranties about the other. Purchaser has no power, express or
implied, to accept any order on behalf of the Company or to bind
the Company, either directly or indirectly, with respect to any
order or with respect to any other contract or matter whatsoever.
2.3 Purchaser is free to select its sales personnel and establish their
compensation, and manage its business, in each case as it deems
appropriate.
2.4 Nothing in this Agreement shall be construed as prohibiting or
placing any restrictions whatsoever on the Company's right (i) to
market, promote, distribute, license or sell any Products to or for
the benefit or use of any person, firm or company the Company may
select in its sole discretion; or (ii) to appoint distributors of
the Products that may sell Products.
2.5 In partial consideration of the distribution rights granted by the
Company to the Distributor hereunder, Distributor shall pay to the
Company a non-recurring and non-refundable fee in the amount of
$1.00 (one dollar).
a) The Distribution Fee shall be due and payable in U.S. Dollars
on the date of execution of this Agreement, and shall be fully
earned by the Company when paid.
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Distributor hereby expressly agrees that the Distributor Fee shall
not in any way or under any circumstances be credited against or
applied to amounts due for any Products ordered by Distributor
under this Agreement, including without limitation, Products
ordered pursuant to Section 7.2 below.
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SECTION 3. GENERAL OBLIGATIONS OF PURCHASER
3.1 Customer Support. Purchaser shall handle and promptly settle any
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User's customer complaints concerning the Products, following the
Company's guidance included in the Company's operations guide
provided by the Company to Purchaser (the "Operations Guide"), as
amended from time to time in the sole discretion of the Company.
Purchaser agrees to assist the Company in arranging for any
customer warranty service.
3.2 Expenses. Purchaser assumes full responsibility for all costs and
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expenses which it incurs in carrying out its obligations hereunder,
including but not limited to all rentals, salaries, commissions,
advertising, demonstrations, travel and accommodation expenses
without the right to reimbursement for any portion thereof from the
Company.
3.3 Other General Obligations Of Purchaser. Subject to all applicable
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laws and regulations, Purchaser undertakes the following
obligations on a continuing basis:
(a) Adherence to Business Ethics and Laws
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Purchaser shall adhere to the highest principles of business
ethics. Without limiting the generality of the foregoing,
Purchaser shall comply with all applicable laws and
regulations.
(b) Contacts with the Press and Other Media
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Purchaser shall not make any statement or distribute any
material concerning the Company to the press or other
communications media, except for (i) materials provided to
Purchaser by the Company for publication and (ii)
statements and materials otherwise approved in writing by
the Company. Purchaser shall promptly bring to the
Company's attention and deliver to it copies of any
articles in the press concerning the Company and/or the
Products of which Purchaser may be aware.
(e) No Exports
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Purchaser shall not sell any Products outside of the
United States and shall use its best efforts to ensure
that Products it sells are not resold outside of the
United States.
3.4 Purchaser's Representations and Warranties. Purchaser hereby
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represents and warrants to the Company that: (i) Purchaser is a
business organization duly organized and in good standing in
accordance with the laws of its state of incorporation; (ii)
Purchaser has duly authorized the execution and performance of this
Agreement; (iii) this Agreement is lawful and may be performed in
accordance with its terms as of the date hereof; and (iv) Purchaser
is a business organization with the required personnel duly trained
to market and sell products similar to the Products, transportation
to distribute such Products, warehouses to store them and a
computer system which allows a detailed control of stocks and
sales.
SECTION 4. GENERAL OBLIGATIONS OF THE COMPANY; WARRANTIES
4.1 The Company warrants that the Products will be free from defects in
material and workmanship. The Company shall replace or repair, at
its option, any Products that within
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thirty (30) days from the Date of Delivery are found defective in
material or workmanship, upon written notification by Purchaser
identifying each and every defect. The Company's obligation with
respect to such Products shall be limited to repair or replacement,
without any further expense to the Company. Any alteration, abuse,
modification or misuse, including, but not limited to, neglect or
accidental damage or defacement of the Products shall void this
limited warranty. THE FOREGOING LIMITED WARRANTY IS EXPRESSLY MADE
IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The foregoing
limited warranty shall not be enlarged or affected by, and no
liability or obligation shall arise from, the Company's rendering
of technical or other advice, or of service, in connection with any
of the Products. Employees, agents, distributors and sales
representatives are not authorized to make warranties. Oral or
written statements made by them do not constitute warranties and
shall not be relied on by Purchaser. REPLACEMENT OR REPAIR OF A
DEFECTIVE PRODUCT IS PURCHASER'S SOLE AND EXCLUSIVE REMEDY FOR
CONTRACT, WARRANTY, NEGLIGENCE, TORT OR STRICT LIABILITY CLAIMS FOR
ANY LOSS, DAMAGE OR EXPENSE ARISING OR ALLEGED TO ARISE FROM THE
MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS. IN NO EVENT
SHALL The Company BE LIABLE FOR LOSS OF USE OR PROFITS, LOSS OF
BUSINESS, EXPENSES OR COSTS ARISING FROM OR ALLEGED TO ARISE FROM
BUSINESS INTERRUPTION, ATTORNEYS' EXPENSES OR CONSEQUENTIAL,
CONTINGENT, INCIDENTAL OR SPECIAL DAMAGES CAUSED OR ALLEGED TO BE
CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE, TORT, STRICT
LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHER BREACH
OF DUTY OF OR BY THE COMPANY. Purchaser shall obtain shipping
instructions and a return material authorization from the Company
for the return of any item under this warranty provision.
Compliance with such instructions shall be a condition precedent to
the Company's repair or replacement options hereunder.
4.2 The Company shall make commercially reasonable efforts to provide
Purchaser with the latest Product information and, upon Purchaser's
request, any information concerning the technical aspects of the
Products, their use and application.
4.3 The Company does not guarantee the results of, and Purchaser will
not be entitled to rely on, any marketing plan of the Company.
4.4 The Company represents that: (i) it is a corporation duly
incorporated and in good standing under the laws of the State of
Delaware, United States of America; and (ii) it has duly authorized
the execution and performance of this Agreement.
SECTION 5. ORDER FOR PRODUCTS
5.1 Order. Purchaser shall order Products from the Company using the
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Company's purchase order form in effect from time to time.
Distributor shall submit its Purchase Orders for Products to the
Company in writing, by facsimile, overnight reputable overnight
courier or, if agreed to by the Company, e-mail. All Purchase
Orders shall list the Products ordered,
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quantities, applicable prices, scheduled delivery dates, delivery
point, shipping instructions and any other information deemed
necessary by the Company. IN CASE OF CONFLICTS OR INCONSISTENCY
BETWEEN THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THOSE SET FORTH
IN ANY PURCHASE ORDERS, ACCEPTANCES, CORRESPONDENCE, AND OTHER
DOCUMENTS FORMING PART OF ANY ORDER DURING THE TERM OF THIS AGREEMENT,
THIS AGREEMENT SHALL GOVERN AND PREVAIL, AND THE CONFLICTING OR
INCONSISTENT TERMS AND CONDITIONS OF ANY SUCH OTHER DOCUMENTS SHALL
BE DEEMED DELETED AND SHALL NOT BE BINDING UPON EITHER PARTY.
Distributor shall ensure that its Purchase Orders are received by
the Company at least forty-five (45) days prior to the delivery
dates requested in the order.
5.2 Acceptance of Orders. All Purchase Orders from Distributor are
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subject to acceptance in writing by the Company, at its offices in
Palm Beach, FL U.S.A. The Company may expressly accept or reject
each Purchase Order, or the Company may show its acceptance by
providing to Distributor the appropriate transaction documents,
including, but not limited to, invoices (showing item, quantity,
price, amount due, and other typical invoice information), and
order acknowledgments (confirming Products and quantities ordered),
or by sending the Products to Distributor. Each Purchase Order
shall be deemed to be an offer by Distributor to purchase the
Products pursuant to the terms of this Agreement, and, if accepted
by the Company shall give rise to a contract on the terms set forth
herein to the exclusion of any additional or contrary terms set
forth in the Purchase Order. Distributor may cancel its Purchase
Order in writing prior to its acceptance by the Company.
5.3 Acceptance of Products. Distributor shall either accept or reject
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the Products within a thirty- (15) day period after the Date of
Delivery. Distributor's rejection may be for one of the following
reasons only: (i) pursuant to Section 4,or (ii) because the
Products delivered did not correspond to the applicable purchase
order. Distributor's failure to give the Company written notice of
rejection within such thirty- (15) day period shall be deemed
acceptance of the Products by Distributor. Distributor shall also
be deemed to have accepted the Products by signing a transaction
document requiring its signature, or providing the Products to
Resellers, if any, or Users, or making any payment, including
partial payments, to the Company for such Products.
5.4 Initial Order. Purchaser shall purchase from the Company, and the
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Company shall sell to Purchaser, the following Products: 500_
VeriChip microchips, 50_ Scanners and _0 service plans to the
Global Verichip Registry Service at the prices set forth in Exhibit
"B" - Price List, all in accordance with the terms of this
Agreement. Purchaser shall submit to the Company a delivery request
schedule, and the Company shall make a good faith effort to comply
with the requested schedule. Notwithstanding the foregoing, the
Company shall supply all of the Products ordered in this Section
5.1 no later than November 30, 2003 and the Purchaser shall pay for
all such Products no later than
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5.5 Delivery, Insurance, Title And Risk Of Loss. The Company will make
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reasonable efforts to meet Purchaser's delivery requirements for
Products. The Company will inform Purchaser of the estimated
delivery date and, at Purchaser's request, keep it informed of its
status; provided, however, that in no event shall the Company be
liable for the consequences of any delays in delivery due. All
delivery of Products to Purchaser shall be F.O.B. at the offices of
the Company. Purchaser shall be responsible for transportation and
insurance of the Products after delivery. Such insurance shall
provide full coverage from the time the Products are delivered
until Purchaser shall have paid the Company for such Products in
full.
The Company bears the risk of loss or of damage to the Products
until their delivery, as provided in the preceding paragraph.
Thereafter, Purchaser assumes such risks. Title passes on delivery.
5.6 Reports. Purchaser hereby agrees, to aid the Company with its
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marketing, to provide the Company with sales information, as
reasonably requested from time to time.
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SECTION 6. PAYMENTS
6.1 Deposit. Within 10 days from the date hereof, Purchaser shall pay
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to the Company U.S.$ (the "Deposit"), $5,000.00 (Five Thousand
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Dollars) as a deposit and will be reflected as a credit to
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Purchaser, to be applied against future amounts owed to the Company
by Purchaser.
6.2 Related Charges: The following are related charges
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(a) Taxes and Duties : Any taxes and duties resulting from the
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sale of Products, license or related activities hereunder,
as the case may be, except taxes based on the Company's
net income. Purchaser must provide the Company with a
resale tax exemption certificate if applicable. Upon
request, Purchaser will, from time to time, provide such
certificates or pay applicable sales tax on the purchase
of the Products.
(b) Additional Charges:
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Depending on the particular Product or circumstances (e.g.
special packaging or printing requested by Purchaser),
additional charges may apply, of which the Company will
inform Purchaser in writing.
(c) Training and Development
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The Company shall provide training and development, as
requested by Purchaser, at a rate of U.S.$100 per hour,
plus travel and other reasonable expenses. The training
materials and any of the information conveyed to Purchaser
shall remain the intellectual property of the Company.
Purchaser is under no obligation whatsoever to purchase
training and development services.
6.3 Payment Schedule.
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Purchaser shall make payments for the Products in accordance with
the following schedule:
(a) Upon order, 50% of the Purchase Price
(b) Prior to delivery, 50% of the Purchase Price.
(c) Within 30 days of invoice for any Related Charges: the
amount of such Related Charges pursuant to Section 6.2.
Depending on credit history, the Company may change these payment
terms by amending this agreement pursuant to Section 11.6; other
payment terms set forth in a purchase order are not valid.
For the initial order, payment shall be made as follows:
(i) Within 10 days of the date hereof: the Deposit as provided
in Section 6.1;
(ii) Upon or prior to delivery of any Product: 50% of the
Purchase Price for the Products being delivered;
(iii) Within 15 days of delivery of Products: 50% of the
Purchase Price for the Products so delivered.
(iv) Within 15 days of invoice for any Related Charges: the
amount of such Related Charges pursuant to Section 6.2.
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Payments shall be made in cash, in U.S. dollars, by wire transfer
of immediately available funds. Notwithstanding the foregoing,
after the Deposit is paid, the Purchaser may apply any credits it
has on account (including the credit it will have by reason of
paying the Deposit) to any amount owing under Sections 6.3(b),
6.3(c), 6.3(iii) or 6.3(iv) by providing written notice to the
Company.
6.4 Packaging and Shipment. Unless Purchaser requests otherwise, all
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Products purchased by Purchaser shall be packed for shipment and
storage in accordance with the Company's standard commercial
practices which Purchaser represents and warrants to know and
accept. Any special packaging requirements requested by Purchaser
shall be at Purchaser's expense pursuant to Section 6.2.
SECTION 7. LIMITATION TO LIABILITY
7.1 Limitation of Liability and Remedies. Purchaser understands and
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agrees that regardless of the basis on which damages can be claimed
by Purchaser, Resellers and/or Users, Purchaser's, Resellers'
and/or Users' exclusive remedy and the Company's exclusive
liability shall be limited as follows:
(a) Actual Damages. The Company shall be responsible for no
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more than the lesser of (i) the amount of any actual loss
or damage solely, or (ii) the aggregate payments received
by the Company for the Product that is the subject of the
claim.
(b) Consequential Damages. UNDER NO CIRCUMSTANCES, EXCEPT AS
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REQUIRED BY LAW, SHALL THE COMPANY BE LIABLE FOR ANY
ECONOMIC CONSEQUENTIAL DAMAGES, INCLUDING (1) ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES
(INCLUDING LOST PROFITS OR SAVINGS) TO PURCHASER AND/OR
RESELLERS AND/OR USERS, EVEN IF THE COMPANY SHALL HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR
DAMAGE, OR (2) THIRD PARTY CLAIMS AGAINST PURCHASER AND/OR
USERS FOR LOSSES OR DAMAGES, OR FOR SPECIAL, INCIDENTAL,
OR INDIRECT CHARGES, OR FOR ANY ECONOMIC CONSEQUENTIAL
DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) EVEN IF THE
COMPANY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
POTENTIAL LOSS OR DAMAGE.
7.2 Sole Remedies. THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF ANY
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AND ALL WARRANTIES AND THE SOLE REMEDIES FOR THE COMPANY'S
LIABILITY IF ANY KIND (INCLUDING LIABILITY FOR NEGLIGENCE) WITH
RESPECT TO THE PRODUCTS AND SERVICES COVERED BY THIS AGREEMENT AND
ALL OTHER PERFORMANCE BY THE COMPANY UNDER OR PURSUANT TO THIS
AGREEMENT SHALL BE LIMITED TO THE REMEDIES PROVIDED IN SECTION 4
HEREOF.
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SECTION 8. CONFIDENTIALITY
8.1 Confidential Information. Purchaser agrees that the Company has a
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proprietary interest in any and all Company Confidential
Information provided to Purchaser by the Company in connection with
this Agreement or otherwise, whether such information is in
written, oral or visual form.
8.2 Protection Of Company Information. Purchaser acknowledges and agrees
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that all Company Confidential Information is confidential and
proprietary to the Company. In this regard,
(a) Purchaser agrees to use Company Confidential Information
solely in the discharging of its responsibilities
hereunder;
(b) Purchaser may disclose Company Confidential Information to
its employees who have the need to know such information;
provided, however, that prior to any such disclosure,
Purchaser must have an appropriate confidentiality
agreement with any such employee, binding such employee on
the terms of this Section 8. For a period of three (3)
years from the date of receipt of Company Confidential
Information, Purchaser may not disclose such Confidential
Information to others (including but not limited to any
affiliates of Purchaser) unless, prior to such disclosure,
Purchaser has an appropriate agreement with the other
party and such disclosure is approved by the Company in
writing. All such appropriate agreements must enable
Purchaser to meet its obligations hereunder and to enforce
the terms and conditions of this Section;
(c) Purchaser shall not make any additional copies of any
writings, documents, programs or other media which contain
Company Confidential Information and are marked "do not
reproduce" or similar language, without the prior written
permission of the Company;
(d) Purchaser shall keep all writings, documents or other
media containing Company Confidential Information secure
in locked files at all times, when not in use, to prevent
their loss or unauthorized disclosure, take action to
prevent unauthorized access to any of its premises and
comply with all other reasonable security procedures and
measures which the Company may recommend from time to
time;
(e) Purchaser shall segregate Company Confidential Information
at all times from materials of third parties;
(f) Purchaser's obligations with respect to Company
Confidential Information will not apply to any information
that (i) is already in its possession without obligation
of confidence; (ii) is independently developed; (iii) is
or becomes publicly available without breach of this
Agreement; (iv) Purchaser rightfully receives from a third
party without obligation of confidence; or (v) is released
for disclosure with the Company's written consent;
(g) Purchaser shall, upon termination or expiration of this
Agreement, deliver to the Company all written or
descriptive materials which contain Company Confidential
Information;
(h) From time to time, the Company may provide Purchaser with
copies of documents labeled "For Internal Use Only".
Purchaser agrees to limit use of these documents to the
performance of its responsibilities hereunder and not to
make the documents available to any third party.
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8.3 Protection Of Purchaser Information
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(a) Purchaser understands that the Company does not wish to
receive any information which Purchaser, or any third
party, considers confidential or proprietary. Information
that Purchaser supplies to the Company will not be treated
as confidential by the Company unless, before receipt, the
Company agrees in writing to do so.
(b) The Company may use any information which Purchaser makes
available to the Company, designated as confidential by
Purchaser, and the Company may authorize its affiliates to
use such information in their operations; provided,
however, that the Company shall instruct its personnel to
keep such information confidential by using the same care
and discretion that it uses with similar data which the
Company designates as confidential; further, the Company
shall not disclose any such confidential information by
publication or otherwise to any third party without the
prior written permission of Purchaser.
(c) Notwithstanding the foregoing, if the Company conducts an
inspection in accordance with its rights pursuant hereto,
any materials inspected will be treated as confidential
and the Company will not disclose any of them unless
required by law to do so.
SECTION 9. INTELLECTUAL PROPERTY MATTERS
9.1 Trademarks. Purchaser is hereby authorized to use the Trademarks
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solely for the Term of this Agreement and solely for purposes of
identifying the Products which Purchaser is authorized to market
hereunder. In addition, Purchaser is hereby authorized to use,
during the Term of this Agreement and within the United States, the
designation "Distributor of VeriChip Products" or "VeriChip User"
in its activities hereunder.
(a) Purchaser is not granted any right or license to use the
Trademarks or any other trademark or tradename owned by
the Company in such a manner as to cause confusion
concerning the origin of any goods or services.
Promotional, advertising and other materials to be used by
Purchaser, which incorporate or display any Trademarks,
other than such material which has been supplied to
Purchaser by the Company, shall be subject to the
Company's guidelines or instructions. Purchaser agrees to
change or correct, at Purchaser's expense, any such
promotional advertising or other material, which in the
Company's reasonable judgment is inaccurate, objectionable
or misleading, or misuses a trademark or tradename owned
by the Company.
(b) Purchaser hereby acknowledges the Company's exclusive
right, title and interest in and to the Trademarks.
Purchaser acknowledges and agrees that, except for the
limited use of the Trademarks for purposes of using or
marketing and distributing the Products in conformity with
this Agreement, Purchaser will acquire no right, title or
interest of any kind or nature whatsoever in or to the
Trademarks or the goodwill associated therewith. Purchaser
recognizes that the Trademarks and any goodwill attached
thereto, belong to the Company, and Purchaser understands
and agrees that Purchaser's use of the Trademarks shall
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inure to the benefit of the Company. Purchaser shall not
disparage, bring into disrepute or reduce the value of any
Trademarks. Purchaser shall not at any time do or permit
any act to be done which may in any way impair the rights
of the Company in the Trademarks.
(c) Purchaser shall not, without the Company's prior written
consent, remove or alter any Trademarks, trade names,
patent numbers, serial numbers, notices, labels, tags or
other identifying marks, symbols or legends affixed to any
Products, containers or packages.
(d) Purchaser undertakes fully and without any reservation
whatsoever to render to the Company all assistance as may
be necessary in connection with any matter pertaining to
the protection of the Trademarks, including, without
limitation, to assert no interest in or to, and to
withdraw or terminate any interest in or to, any
Trademarks which would limit the Company's ability to
protect those Trademarks.
(e) Purchaser will immediately notify the Company in writing
if any claim of infringement is brought against Purchaser
in respect to the use of the Trademarks, or if Purchaser
is aware of or suspects any infringement of the Trademarks
by another party. The Company reserves the right in its
sole discretion to institute any proceedings against any
such third party infringers and Purchaser shall refrain
from doing so. The Company shall control the defense or
prosecution of any actions concerning infringement of its
Trademarks. Purchaser shall cooperate fully with the
Company in any action taken by the Company against any
such third parties, provided that all expenses of such
action, including Purchaser's, shall be borne by the
Company and all damages which may be awarded therefrom
shall accrue to the Company.
Any unauthorized use of the Trademarks by Purchaser shall be a
material breach of this Agreement, entitling the Company to
terminate this Agreement and to bring an action for infringement of
the rights of the Company in and to the Trademarks.
9.2 Patents And Copyrights. No rights or licenses are granted to Purchaser
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herein by the Company, expressly or by implication, under any patents
or copyrights.
(a) The Company shall defend Purchaser against any claim that
any Product provided by the Company hereunder infringe any
patent, copyright or other analogous right enforceable in
the United States, and the Company shall pay any resulting
damages, costs and attorney's fees finally awarded by a
court or any resulting settlement agreed upon by the
Company, provided that Purchaser promptly notifies the
Company in writing of the claim and, further provided,
that the Company has sole control of the defense and of
all related settlement negotiations.
(b) The Company's obligation under this Section is subject to
the condition that if any Product becomes, or in the
Company's opinion is likely to become, the subject of such
a claim, Purchaser shall permit the Company, at its option
and expense, either to procure the right of Purchaser to
continue marketing or using the item involved or to
replace or modify it so that it becomes non-infringing. If
neither of the foregoing alternatives is available in
terms which are reasonable in the Company's sole judgment,
Purchaser hereby agrees that, upon written request by the
Company, Purchaser shall return the item involved to the
Company. In
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such a case, the Company agrees to grant a credit or refund
to Purchaser for the amount of charges of the returned
Product, as well as any costs of return and applicable
taxes thereon.
(c) The Company shall have no obligation to Purchaser for any
liability to third parties for any claim based upon any
alteration or modification of any Product or based upon
the combination, operation or use of any Product with
equipment, data or programming not supplied by the
Company.
The foregoing states the entire obligation of the Company in regard of
all intellectual property matters and Purchaser shall have no right to
act in the Company's name or on the Company's behalf, with respect to
infringement of patents, copyrights or analogous rights relating to the
Products.
SECTION 10. INDEMNIFICATION
10.1 Purchaser Indemnification. In addition to damages for which
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Purchaser may be liable under law or equity or under the terms of
this Agreement or any other applicable agreements, and subject to
the provisions of Section 10.4 - "Indemnification Procedure",
below, Purchaser shall indemnify, defend and hold the Company, its
affiliates and all officers, directors, employees and agents
thereof, harmless from and against any and all claims, liabilities,
losses, damages, costs and expenses (including without limitation
reasonable attorney's fees, expenses and settlement costs,
including appeal proceedings) (collectively, "Damages"), which the
Company or any of its Affiliates and all officers, directors,
employees and agents thereof may at any time sustain or incur by
reason of or in connection with any claim, demand or other action
initiated by any person or entity, arising from, related to or in
any way connected with (i) Purchaser's conduct under this Agreement
and any other applicable agreements; (ii) Purchaser's breach of
this Agreement; (iii) Purchaser's failure to comply with applicable
laws and regulations; or (iv) Purchaser's relations with anyone
else, particularly regarding statements, representations or
warranties made by Purchaser not expressly authorized in writing by
the Company hereunder. Furthermore, Purchaser shall indemnify and
hold the Company harmless from and against any and all claims,
costs, damages and liabilities whatsoever asserted by any employee,
agent, or representative of Purchaser under any applicable
termination, labor, social security or other similar laws and
regulations.
Purchaser shall not be obliged to indemnify the Company from any
such liability, loss, damage, cost or expense, to the extent that
such liability, loss, damage, cost or expense was caused by any
intentional or grossly negligent act or omission or
misrepresentation, or by breach of obligations specified in this
Agreement by the Company.
10.2 Company Indemnification. The Company hereby agrees to indemnify,
-----------------------
defend and hold harmless Purchaser, its affiliates and all
officers, directors, employees and agents thereof from all Damages
arising out of: (i) the Company's material breach of this
Agreement, or (ii) the Company's failure to comply with applicable
laws and regulations in the U.S.
The Company's liability hereunder will be limited as follows:
Page 14 of 23
(a) Claims, Demands and Other Actions:
---------------------------------
With respect to the claims, demands and other actions
referred to in Paragraph 10.1, above, to the extent that
any such claim, demand or other action relates to:
(1) any Product sold by Purchaser pursuant to any
agreement containing warranties or other
commitments which exceed those warranties
or commitments which the Company extends
hereunder, the Company's obligation to indemnify
Purchaser shall be equal to the liabilities,
losses, damages, costs and expenses for which
Purchaser would have been liable if the agreement
pursuant to which Purchaser sold the Product
involved had not contained such additional
warranties or other commitments;
(2) the failure by Purchaser to deliver a Product by
a delivery date committed by the Company, the
Company's obligation to indemnify Purchaser, if
any, shall not exceed the liabilities, losses,
damages, costs and expenses for which Purchaser
would have been liable if the agreement pursuant
to which Purchaser sold the Product involved had
contained provisions substantially identical to
those of Section 11.12 "Force Majeure", hereof.
(b) Certain Purchaser Actions:
-------------------------
In any event, the Company shall not be obliged to
indemnify Purchaser from any such liability, loss, damage,
cost or expense to the extent that such liability, loss,
damage, cost or expense was caused by any intentional or
grossly negligent act or omission or misrepresentation, or
by any breach of obligations specified in this Agreement
by Purchaser.
10.3 Allocation of Expenses
----------------------
In the event a claim is based partially on an indemnified claim
described in Section 10.1 and/or Section 10.2, above, and partially
on a non-indemnified claim, or is based partially on a claim
described in Section 10.1, above, and partially on a claim
described in Section 10.2, above, any payments and reasonable
attorney fees incurred in connection with such claims are to be
apportioned between the Parties in accordance with the degree of
cause attributable to each Party.
10.4 Indemnification Procedure
-------------------------
The liability of Purchaser and of the Company under Section 10.1
and Section 10.2, is subject to Purchaser or the Company (as the
case may be): (a) having promptly notified the other of any claim,
demand or other action likely to give rise to a claim against the
other; and (b) giving the other all freedom either to join the
defense, or to direct such defense, with a right to come to a
settlement if the other so wishes.
SECTION 11. MISCELLANEOUS PROVISIONS
11.1 Prior Agreements. This Agreement contains the entire agreement of
----------------
the Parties with respect to the subject matter hereof and shall
cancel and supersede, as of the date this Agreement is signed by
both Parties, any prior agreements written or oral between the
Parties or their respective legal predecessors with respect to the
subject matter covered by this Agreement.
Page 15 of 23
11.2 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the State of Florida, United
States of America, applicable to agreements made and to be
performed entirely within Florida, without regard to the conflicts
of law principles of such State. Purchaser acknowledges, represents
and warrants that it is aware of the laws of the State of Florida,
and has been duly advised and willfully chooses the laws of the
State of Florida as the governing law for this Agreement.
The Parties hereby agree that neither the "United Nations
Convention on Contracts for the International Sale of Goods", nor
the Convention on the Limitation Period in the International Sale
of Goods and the Protocol amending such Convention, done at Vienna
April 11, 1980, shall govern the rights, duties and obligations of
the Parties under this Agreement.
11.3 Jurisdiction; Consent to Service of Process
-------------------------------------------
(a) Both of the Parties hereby irrevocably and unconditionally
submit, for themselves and their property, to the
jurisdiction of any court of the State of Florida sitting
in Palm Beach County, Florida, or any Federal court of the
United States of America sitting in the Southern District
of the State of Florida, and any appellate court from any
such court, in any suit, action or proceeding arising out
of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the Parties
hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such suit, action or
proceeding may be heard and determined in such State of
Florida court or Federal court. It shall be a condition
precedent to each Party's right to bring any such suit,
action or proceeding that such suit, action or proceeding,
in the first instance, be brought in such State of Florida
court or, to the extent permitted by law, in such Federal
court (unless such suit, action or proceeding is brought
solely to obtain discovery or to enforce a judgment), and
if each of such State of Florida court and such Federal
court refuses to accept jurisdiction with respect thereto,
such suit, action or proceeding may be brought in any
other court of competent jurisdiction. No Party to this
Agreement may move to (1) transfer any such suit, action
or proceeding from such State of Florida court or any
Federal court of the United States of America sitting in
the State of Florida, to another jurisdiction, (2)
consolidate any such suit, action or proceeding brought in
such State of Florida court or Federal court with a suit,
action or proceeding in another jurisdiction, or (3)
dismiss any such suit or proceeding brought in such State
of Florida court or any Federal court of the United States
of America sitting in the State of Florida, for the
purpose of bringing the same in another jurisdiction. Each
Party agrees that a final judgment in any such suit,
action or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by law.
(b) Each of the Parties hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement
in any State of Florida court sitting in Palm Beach
County, Florida, or any Federal court sitting in the
Southern District of the State
Page 16 of 23
of Florida. Each of the Parties hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such suit, action
or proceeding in such court and further waives the right
to object, with respect to such suit, action or
proceeding, that such court does not have jurisdiction
over such Party.
(c) Each of the Parties, hereby irrevocably consents to
service of process in the manner provided for notices in
Section 11.5 hereof. Nothing in this Agreement will affect
the right of either Party to this MEAgreement to serve
process in any other manner permitted by law.
11.4 Assignment. This Agreement and the rights and obligations hereunder
----------
may not be assigned, delegated or transferred by either Party
without the prior written consent of the other Party; provided,
however, that Purchaser's consent shall not be required with
respect to any assignment, delegation or transfer by the Company to
any entity providing financing to the Company, to another division
of the Company or to any affiliate of the Company or division of
such affiliate. This Agreement shall inure to the benefit of the
permitted successors and assigns of the Company. For the purposes
of this Agreement, "affiliate" shall mean any company, natural
person, partnership or other business entity controlled by, under
common control with or controlling either Party to this Agreement.
11.5 Notices. Notices and other communications provided for herein shall
-------
be in writing and shall be delivered by hand or overnight
international courier service, sent by graphic scanning or other
telegraphic communication equipment available to both, the sending
Party and the receiving Party, as follows:
If to Purchaser:
----------------------------------------
----------------------------------------
Facsimile No.:
--------------------------
Attention:
------------------------------
If to the Company:
VeriChip Corporation
000 Xxxxx Xxxx Xxx, Xxx. 000
Xxxx Xxxxx, XX 00000
United States of America
Facsimile No.: (000) 000-0000
Attention: President
Page 17 of 23
All notices and other communications given to either Party hereto
in accordance with the provisions of this Agreement shall be deemed
to have been given on the date of delivery if delivered by hand or
overnight courier service or on the first business day if sent by
graphic scanning or other telegraphic communications equipment
available to both the sender and the receiver, in each case
delivered, sent or mailed (properly addressed) to such Party as
provided in this Section 11.5, or in accordance with the latest
unrevised direction from such Party given in accordance with this
Section.
11.6 Amendments. Except as provided elsewhere herein, this Agreement can
----------
be modified only by a specific written agreement duly signed by
persons authorized to sign agreements on behalf of Purchaser and
the Company.
11.7 Publicity. Purchaser agrees that any publicity or advertising which
---------
shall be released by Purchaser in which the Company is identified
in connection with the Products shall be in accordance with the
terms of this Agreement and with such information or data as the
Company may, from time to time, furnish to Purchaser for such
purposes. Copies of all such publicity and advertising shall be
forwarded to the Company for its prior written approval.
11.8 Severability. If any provision of this Agreement shall be held by a
------------
court or other tribunal of competent jurisdiction to be invalid,
illegal or unenforceable, or shall be required to be modified, the
validity, legality and enforceability of the remaining provisions
shall not be affected or impaired thereby.
11.9 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which will be deemed an original but all of
which when taken together will constitute one and the same
contract, and shall become effective when one or more such
counterparts have been signed by each of the Parties and delivered
to the other Party.
11.10 Waiver. The waiver by either Party of any instance of the other
------
Party's non-compliance with any obligation or responsibility herein
shall not be deemed a waiver of the waiving Party's remedies for
such non-compliance in the future.
11.11 Time Limit On Actions. No action, regardless of form, arising out
---------------------
of this Agreement may be brought by either Party more than two (2)
years after the cause of action has occurred; provided, however,
that this paragraph shall not apply to actions involving patents,
copyrights, Trademarks or tradenames, Company Confidential
Information.
11.12 Force Majeure. Neither Party shall be liable for failure to perform
-------------
or delay in performing any obligation under this Agreement, except
the obligation to make payments when due, if such failure or delay
is due to force majeure, including, but not limited to, war,
embargo, riot, insurrection, sabotage or other civil unrest; fire,
explosion, flood or other natural disaster; accident or breakdown
of machinery; unavailability of fuel, labor, containers, or
transportation facilities; accidents of navigation, breakdown or
damage of vessels or other conveyances for air, land or sea; other
impediments or hindrances to transportation; strike or other labor
disturbances; government restraints or any other cause beyond the
control
Page 18 of 23
of the affected party; provided, however, that the Party so
failing to perform shall (i) as soon as possible, inform the other
Party of the occurrence of the circumstances preventing or delaying
the performance of its obligations, and describe at a reasonable
level of detail the circumstances causing such delay, and (ii)
exert reasonable efforts to eliminate, cure or overcome any of such
cases and to resume performance of its covenants with all possible
speed. In such event, the non-performing Party will be excused from
any further performance or observance of the obligation(s) so
affected for as long as such circumstances prevail and such Party
continues to use its best efforts to recommence performance or
observance whenever and to whatever extent possible without delay.
In the event that, by operation of law or governmental decree, it
becomes illegal to market and sell a Product, Purchaser shall be
relieved of its obligations under this Agreement (other than the
obligation to make any payment due hereunder) only to the extent
that they relate to such Product. Any Party so delayed in its
performance will be under no liability for loss or damages suffered
by the other Party thereby.
Either Party may convene a meeting between the Parties to discuss
the force majeure and its effect on any obligation under this
Agreement. The Parties shall seek to modify the relevant provisions
in order to accommodate the circumstances caused by the force
majeure. If the Parties fail to agree on such modifications within
thirty (30) calendar days after notice of the force majeure is
delivered, either Party may terminate this Agreement by written
notice to the other Party. Such termination shall be effective
thirty (30) calendar days after the date of the written notice.
Page 19 of 23
11.13 WAIVER OF JURY TRIAL
--------------------
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT, OR ANY DOCUMENT CONTEMPLATED TO BE EXECUTED OR
DELIVERED IN CONJUNCTION HEREWITH. EACH PARTY HERETO (1), CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (2), ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.14 Termination. This Agreement may be terminated by either party upon
-----------
30 days' written notice to the other. Notwithstanding the
foregoing, termination shall not affect the rights or obligations
of either party (i) in respect of Products previously purchased,
(ii) in respect of purchase orders placed by Distributor and
accepted by the Company (whether or not previously delivered), or
(iii) as set forth in Sections 8, 9, 10 and this Section 11.
11.15 Section Headings. The section headings contained herein are for
----------------
convenience of reference only and shall not be used in construing
this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
signed by their duly authorized representatives on the date written below.
PURCHASER:
By: /S/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
------------------------------
Title: President
-----------------------------
Date: September 5, 2003
------------------------------
ACCEPTED BY The Company:
VERICHIP CORPORATION
By: /S/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: President
-----------------------------
Date: September 5, 2003
------------------------------
Page 20 of 23
EXHIBIT "A"
Products
============================================================================
VeriChip microchips Veriguard Veritag Veritrack Verikid
--------------------------------------------------------------
VeriChip Scanners
-----------------
Verify
------
============================================================================
Distributor shall have rights to sell the Verichip product lines and any
future products
AGREED TO AND ACCEPTED ON THIS 5th DAY OF September, 2003, BY:
--- --------- ----
PURCHASER: THE COMPANY:
VERICHIP CORPORATION
-----------------------------------
By: /S/ Xxxx Xxxxxx By: /S/ Xxxxx Xxxxxx
------------------------------- -------------------------------
Name: Xxxx Xxxxxx Name: Xxxxx Xxxxxx
----------------------------- -----------------------------
Title: President Title: President
---------------------------- ----------------------------
Page 21 of 23
EXHIBIT "B"
PRICE LIST
1. VeriChip microchip tags: 500 U.S.$ 70.00
2. VeriChip readers: 50 U.S.$ 625.00
3. VeriChip Registry Service Plans: 0 U.S.$ 9.95 per month, N/A
---
*The above pricing is good for current version of the tags only.
Future versions will be subject to new pricing, as determined by
the Company from time to time.
AGREED TO AND ACCEPTED ON THIS 5th DAY OF September, 2003, BY:
--- --------- ----
PURCHASER: THE COMPANY:
VERICHIP CORPORATION
-----------------------------------
By: /S/ Xxxx Xxxxxx By: /S/ Xxxxx Xxxxxx
------------------------------- -------------------------------
Name: Xxxx Xxxxxx Name: Xxxxx Xxxxxx
----------------------------- -----------------------------
Title: President Title: President
---------------------------- ----------------------------
Page 22 of 23
EXHIBIT "C"
QUOTA REQUIREMENTS
During the Term of this Agreement, Distributor shall make the following
minimum purchases of Products:
EXCLUSIVE DISTRIBUTOR LICENSE: $1.00 cost for Exclusive Distribution New York
State and first right of renewal for new 5 year contract
MINIMUM PURCHASE ORDER YEAR 2003:
500 Microchips: units at $70.00 per unit
50 Scanners: units at $625.00 per unit
PURCHASE ORDER YEAR 2004:
1000 Microchips: units at $70.00 per unit
100 Scanners: units at $625.00 per unit
PURCHASE ORDER YEAR 2005:
2000 Microchips: units at $70.00 per unit
200 Scanners: units at $625.00 per unit
PURCHASE ORDER YEAR 2006:
4000 Microchips: units at $70.00 per unit
400 Scanners: units at $625.00 per unit
PURCHASE ORDER YEAR 2007:
8000 Microchips: units at $70.00 per unit
800 Scanners: units at $625.00 per unit
AGREED TO AND ACCEPTED ON THIS 5th DAY OF September, 2003, BY:
--- --------- ----
DISTRIBUTOR: VERICHIP CORPORATION, a
Metro Risk Management LLC an American Delaware Corporation,
Corporation duly organized and existing on the date shown below:
under the laws of the United States
By: /S/ Xxxx Xxxxxx /S/ Xxxxx Xxxxxx
------------------------------- -------------------------------
Name: Xxxx Xxxxxx By: Xxxxx Xxxxxx
----------------------------- -----------------------------
Title: President Title: President
---------------------------- ----------------------------
Date: September 5, 2003 Date: September 5, 2003
Page 23 of 23
EXHIBIT "D"
TERRITORY
THE STATE of New York
---------------------
AGREED TO AND ACCEPTED ON THIS 5th DAY OF September, 2003, BY:
--- --------- ----
DISTRIBUTOR: VERICHIP CORPORATION, a
________________________an American Delaware Corporation,
Corporation duly organized and existing on the date shown below:
under the laws of the United States
----------------------------------- -----------------------------------
By: By: Xx. Xxxxx Xxxxxx
------------------------------- -------------------------------
Title: Title: President
---------------------------- ----------------------------
Date: Date:
