Exhibit 10.2
AGENT'S REPRESENTATION AGREEMENT
THIS AGREEMENT ("Agreement") is made and effective on
August 20, 2002 by and between XxxxXxxxxxxx.xxx
Incorporated ("Company") and CareDecision Corporation, a
Nevada corporation and its agents, assigns, and affiliated
organizations and entities ("Agent").
NOW, THEREFORE, in consideration of the mutual promises
contained herein, the parties agree as follows:
1. Definitions.
As used herein, the following terms shall have the
meanings set forth below:
A. "Products" shall mean the following of Company's
products to be sold or licensed by Agent:
XxxxXxxxxxxx.xxx PDA (and its various sales
marks), XxxxXxxxxxxx.xxx DataStation,
XxxxXxxxxxxx.xxx Server/Concentrator.
B. "Territory" shall mean the following described
geographic area and/or particular accounts:
Any client, medical services entity,
physician or pharmacy in the United
States that has or had a prior business
relationship with Pharmacare, Inc., a
wholly owned subsidiary of CVS, Inc.
2. Appointment.
For valuable consideration, Company hereby appoints Agent
as its exclusive sales, service and training
representative for the Products in the Territory, and
Agent hereby accepts such appointment. Agent's sole
authority shall be to solicit orders, make sales
presentations, attend trade shows, install products in
Territory, train end-users in Territory for the Products
in the Territory in accordance with the terms of this
Agreement. Agent shall not have the authority to make any
commitments whatsoever on behalf of Company, but shall be
allowed to use the Company's name and carry business cards
and stationary of the Company.
A. Exclusivity Compensation. Agent agrees to pay Company
10% of any sales revenues, services or training revenues
received as compensation for Company's appointing Agent as
exclusive Agent for the Products in the Territory.
B. Compensation for PDA Design Changes. The PDA based
product listed in Section 1(A) is complete, commercial ready
and fully functional. However, the PDA based Product listed
in Section 1(A) functions in a manner that allows Company to
charge end users, or their sponsors, use fees according to a
proprietary Internet e-commerce model. Agent agrees to pay,
or cause Company to be paid, 10% of any revenues received as
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compensation for Company's agreement to alter the
functionality and workflow of the PDA based Product so that
it/they may be sold or licensed in Agent's Territory.
3. General Duties.
Agent shall use its best efforts to promote the Products,
through introduction and referral, and then install,
train, promote a Help Desk and promote other commercial
activities in the Territory. Agent shall also provide
reasonable assistance to Company in promotional activities
in the Territory such as "positive reference" "site visit"
and other activities of Company with respect to the
Products. Agent shall also provide reasonable "after
sale" support to Product purchasers in the effort to
promote the goodwill of Company in the Territory. Agent
shall report from time to time to Company concerning
referral, introduction and reference activities. Agent
will devote adequate time and effort to perform its
obligations. Agent shall neither advertise the Products
outside the Territory nor solicit sales from purchasers
located outside the Territory.
4. Reserved Rights.
Company reserves the right to solicit orders directly from
and sell directly to any end-users or other retail buyers
within the Territory, however all sales made within the
Territory shall be the responsibility of Agent. Agent's
task is to make Company aware of all potential
"Pharmacare" end-users in the Territory including
companies related to Pharmacare that could become
potential sponsors, original equipment manufacturers,
distributors, resellers, dealers, value-added resellers,
telemarketing companies and retail distribution chains as
well as potential end users.
5. Conflict of Interest.
Agent warrants to Company that it does not currently
represent or promote any lines or products that compete
with the Products. During the term of this Agreement,
Agent shall not represent, promote or otherwise try to
sell within the Territory any lines or products that, in
Company's judgment, compete with the Products covered by
this Agreement. Agent shall provide Company with a list
of the companies and products that it currently represents
and shall notify Company in writing of any new companies
and products at such time as its promotion of those new
companies and products commence.
6. Independent Contractor.
Agent is an independent entity, and nothing contained in
this Agreement shall be construed to (i) give either party
the power to direct and control the day-to-day activities
of the other, (ii) constitute the parties as partners,
joint venturers, co-owners or otherwise, or (iii) allow
Agent to create or assume any obligation on behalf of
Company for any purpose whatsoever. Agent is not an
employee of Company and is not entitled to any employee
benefits. Agent shall be responsible for paying all
income taxes and other taxes charged to Agent on amounts
earned hereunder. All financial and other obligations
associated with Agent's business are the sole
responsibility of Agent.
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7. Indemnification.
A. Indemnification by Agent. Agent shall indemnify and
hold Company free and harmless from any and all claims,
damages or lawsuits (including reasonable attorneys' fees)
arising out of negligence or malfeasant acts of Agent, its
employees or its agents.
B. Indemnification by Company. Company shall indemnify
and hold Agent free and harmless from any and all claims,
damages or lawsuits (including reasonable attorneys' fees)
arising out of defects in the Products caused by Company
or failure of Company to provide any products to a
customer that has properly ordered through Agent.
8. Compensation.
Compensation shall apply to all sales agreements executed
within the Territory provided they meet the criteria as
defined herein, regardless of how those sales originated
or were executed, and to sales that are executed outside
of the Territory that are a direct result of leads from
and/or efforts by the Agent.
9. Sale of the Products.
A. Prices and Terms of Sale. Company shall provide Agent
with copies of its current price lists, its delivery
schedules, and its standard terms and conditions of sale,
as established from time to time. All execution of
documentation or agreements shall be the responsibility of
Company. Each order shall be governed by the prices,
delivery schedules, and terms and conditions in effect at
the time the order is accepted, and all quotations made by
Agent, if any, shall contain a statement to that effect.
B. Quotations. Agent shall promptly furnish to Company
copies of all quotations submitted to customers, if any.
Each quotation shall accurately reflect the terms of this
Agreement.
C. Orders. All orders for the Products shall be in
writing, and the originals shall be submitted to Company.
Company shall promptly furnish to Agent informational
copies of all commissionable orders obtained from
customers in the Territory.
D. Acceptance. All orders obtained from the Territory
shall be subject to acceptance by Company at its principal
office and all quotations by Agents, if any, shall contain
a statement to that effect. Agent shall have no authority
to make any acceptance or delivery commitments to
customers. Company specifically reserves the right to
reject any order or any part thereof for any reason.
Company shall send copies to Agent of any written
acceptances on commissionable orders.
E. Credit Approval. Company shall have the sole right of
credit approval or credit refusal for customers in all
cases.
F. Invoices. Company shall render all invoices directly
to the customers and shall send copies of all
commissionable invoices to Agent. Payments shall be made
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directly to Company.
G. Collection. Full responsibility for collection from
customers rests with Company, provided that Agent shall at
Company's request assist in such collection efforts.
H. Inquiries from Outside the Territory. Agent shall
promptly submit to Company, for Company's attention and
handling, the originals of all inquiries received by Agent
from customers outside the Territory.
10. Product Warranty and Product Availability.
A. Product Warranty. Any warranty for the Products shall
run directly from Company to the qualified end-user of the
Products and pursuant to the warranty the qualified end-
user shall return any allegedly defective Products to
Company. Agent shall have no authority to accept any
returned Products.
B. Product Availability. Under no circumstances shall
Company be responsible to Agent or anyone else for its
failure to fill accepted orders, or for its delay in
filling accepted orders, when such failure is due to
strike, accident, labor trouble, acts of nature, or any
cause beyond Company's reasonable control.
11. Demonstration Units.
Any sample or demonstration unit ("Demonstrator") of the
Products provided by Company to Agent shall remain the
property of Company. Agent shall have full responsibility
of keeping each Demonstrator in proper operating condition
during the entire time that the unit is in Agent's
possession. Within ten (10) days of a written request
from Company, Agent shall return each Demonstrator in good
condition to Company, less reasonable wear and tear.
12. Additional Responsibilities of Agent.
A. Forecasts. Agent shall, from time to time,
provide Company with a ninety (90) day rolling forecast of
orders showing each prospective sale by potential
customer, Product model, intended close date, and
probability.
B. Expense of Doing Business. Agent shall bear the
entire cost and expense of conducting its business in the
Territory.
C. Facilities. Agent shall provide itself with, and
be solely responsible for, (i) such facilities, employees,
and business organization, and (ii) such permits,
licenses, and other forms of clearance from governmental
or regulatory agencies, if any, as are necessary for the
conduct of Agent's business operations in accordance with
this Agreement.
D. Promotion of the Products. Agent shall, promote
the sale of and stimulate demand for the Products within
the Territory by direct referral. In no event shall Agent
make any representation, guarantee or warranty concerning
the Products except as expressly authorized by Company.
E. Advising of Changes. Agent shall promptly advise
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Company of (i) any changes in Agent's status,
organization, personnel, and similar matters, (ii) any
changes in the key personnel, organization, and status of
any major customers of Company in the Territory, and (iii)
any political, financial, legislative, industrial or other
events in the Territory that could affect the mutual
business interests of Agent and Company, whether harmful
or beneficial.
F. Books and Records. Agent shall maintain and make
available to Company accurate books, records, and accounts
relating to the business of Agent with respect to the
Products. Agent shall also maintain a record of any
customer complaints regarding either the Products or
Company and immediately forward to Company the information
regarding those complaints.
13. Additional Obligations of Company.
A. Assistance in Promotion. Company shall, at its
own expense, promptly provide Agent with marketing and
technical information concerning the Products, brochures,
instructional material, advertising literature, and other
Product data.
B. Assistance in Technical Problems. Company shall, at its
own expense, assist customers of the Products in all ways
deemed reasonable by Company in the solution of any
technical problems relating to the functioning and use of
the Products.
C. New Developments. Company shall inform Agent of
new product developments that are competitive with the
Products and other market information and competitive
information as discovered from time to time.
14. Trademarks and Tradenames.
A. Use. During the term of this Agreement, Agent
shall have the right to indicate to the public that it is
an authorized Agent of Company's Products and to advertise
(within the Territory) such Products under the trademarks,
marks, and trade names that Company may adopt from time to
time ("Company's Trademarks"). Nothing herein shall grant
Agent any right, title, or interest in Company's
Trademarks. At no time during or after the term of this
Agreement shall Agent challenge or assist others to
challenge Company's Trademarks or the registration thereof
or attempt to register any trademarks, marks or trade
names confusingly similar to those of Company. Company
indemnifies its Agent for all use of Company's Trademarks.
B. Approval of Representations. All presentations of
Company's Trademarks that Agent intends to use shall first
be submitted to Company for approval (which shall not be
unreasonably withheld) of design, color, and other details
or shall be exact copies of those used by Company.
15. Term and Termination.
A. Term. This Agreement shall commence on June 20,
2002 and continue for 24 months, unless terminated earlier
as provided herein. Thereafter, this Agreement shall
continue until terminated upon at least thirty (30) days
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notice by either party.
B. Termination for Cause. If either party defaults
in the performance of any material obligation in this
Agreement, then the non-defaulting party may give written
notice to the defaulting party and if the default is not
cured within ten (10) days following such notice, the
Agreement will be terminated.
C. Termination for Insolvency. This Agreement shall
terminate, without notice, (i) upon the institution by or
against Agent of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of
Agent's debts, (ii) upon Agent's making an assignment for
the benefit of creditors, or (iii) upon initiation of
dissolution proceedings of the Agent.
D. Return of Materials. All of Company's trademarks,
trade names, patents, copyrights, designs, drawings,
formulas or other data, photographs, demonstrators,
literature, and sales aids of every kind shall remain the
property of Company. Within fifteen (15) days after the
termination of this Agreement, Agent shall return all such
items to company at Agent's expense. Agent shall not make
or retain any copies of any confidential items or
information that may have been entrusted to it. Effective
upon the termination of this Agreement, Agent shall cease
to use all trademarks, marks and trade name of Company.
16. Limitation on Liability.
In the event of termination by either party in accordance
with any of the provisions of this Agreement, neither
party shall be liable to the other, because of the
termination for compensation, reimbursement or damages on
account of the loss of prospective profits or anticipated
sales or on account of expenditures, investments, leases
or commitments in connection with the business or goodwill
of Company or Agent. Company's sole liability under the
terms of this Agreement shall be for any unpaid
commissions under Section 8 and Section 15.
17. Confidentiality.
Agent acknowledges that by reason of its relationship to
Company hereunder it will have access to certain
information and materials concerning Company's business
plans, customers, technology, and products that is
confidential and of substantial value to Company, which
value would be impaired if such information were disclosed
to third parties. Agent agrees that it shall not use in
any way for its own account or the account of any third
party, nor disclose to any third party, any such
confidential information revealed to it by Company.
Company shall advise Agent whether or not it considers any
particular information or materials to be confidential.
Agent shall not publish any technical description of the
Products beyond the description published by Company. In
the event of termination of this Agreement, there shall be
no use or disclosure by Agent of any confidential
information of Company, and Agent shall not manufacture or
have manufactured any devices, components or assemblies
utilizing Company's patents, inventions, copyrights, know-
how or trade secrets.
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18. Governing Law and Jurisdiction.
This Agreement shall be governed by and construed
according to the laws of the State of California.
19. Entire Agreement.
This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject
matter herein and supersedes any prior discussions or
agreements between them. No modification of or amendment
to this Agreement, nor any waiver of any rights under this
Agreement, shall be effective unless in writing signed by
the party to be charged.
20. Notices.
Any notices required or permitted by this Agreement shall
be deemed given if sent by certified mail, postage
prepaid, return receipt requested or by recognized
overnight delivery service:
If to Company:
Xxxxx X. Xxxxxx, President
XxxxXxxxxxxx.xxx, Inc.
0000 Xxxxxx Xxxx #000
Xxxxxxxx Xxxxxxx, XX 00000
If to Agent:
CareDecision Corp.
Attn.: Xxxxxx Xxx
0 Xxxx Xxxxx, 00xx Xxxxx, Xxx. 0000-00
Xxx Xxxx, XX 00000
21. Non-Assignability and Binding Effect.
A mutually agreed consideration for Company's entering
into this Agreement is the reputation, business standing,
and goodwill already honored and enjoyed by Agent under
its present ownership, and, accordingly, Agent agrees that
its rights and obligations under this Agreement may not be
transferred or assigned directly or indirectly. Subject
to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the parties hereto, their
successors and assigns.
22. Severability.
If any provision of this Agreement is held to be invalid
by a court of competent jurisdiction, then the remaining
provisions shall nevertheless remain in full force and
effect.
23. Legal Expenses.
The prevailing party in any legal action brought by one
party against the other and arising out of this Agreement
shall be entitled, in addition to any other rights and
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remedies it may have, to reimbursement for its expenses,
including court costs and reasonable attorneys' fees.
24. Headings.
Headings used in this Agreement are provided for
convenience only and shall not be used to construe meaning
or intent.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
XxxxXxxxxxxx.xxx, Inc. CareDecision Corp.
/s/ Xxxxx Xxxxxx /s/ Xxxxxx Xxx
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Xxxxx Xxxxxx, President Xxxxxx Xxx, CEO
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