FULFILLMENT AND TELEMARKETING SERVICE AGREEMENT
This Fulfillment and Telemarketing Services Agreement (the
"Agreement"), made as of January 1, 2000 (the "Effective Date") by and between
Anda, Inc., a Florida corporation having an office at 0000 Xxxxxx Xxxx, Xxxxxx,
Xxxxxxx 00000 ("Anda") and Cybearclub LC, a Florida limited liability company
having an office at 0000 Xxxx Xxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000
("Cybearclub").
WITNESSETH
WHEREAS, Anda and Cybear, Inc., a Delaware corporation ("Cybear"),
created Cybearclub on August 25, 1999 for the purposes of selling certain
healthcare products, including but not limited to, vaccines, oral dosage
pharmaceuticals, injectibles and medical and surgical supplies (the "Products")
to the physician community;
WHEREAS, the Products are currently being sold to the physician
community both through telemarketing efforts by Anda representatives (the
"Telemarketing Services") and the internet through Cybear's xx.xxxxxx.xxx
website;
WHEREAS, in connection with these sales efforts, Anda representatives
provide certain fulfillment services to Cybearclub, including but not limited
to, (a) purchasing and warehousing appropriate levels of certain items of
inventory, (b) picking, packing and shipping the Products to the physician
community and (c) invoicing and posting of the cash receipts for the Products
(the "Fulfillment Services") (the Telemarketing Services and the Fulfillment
Services shall sometimes together be referred to as the "Services"); and
WHEREAS, Anda and Cybearclub have agreed that Cybearclub should pay
Anda a fee for the Services it provides to Cybearclub.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and other good and valuable consideration hereinafter contained, the
parties agrees as follows:
1. Incorporation of Introductory Paragraphs. The WHEREAS clauses are true
and correct and are incorporated into this Agreement.
2. Anda Services. Anda representatives shall provide Services to
Cybearclub. Notwithstanding the foregoing, this shall confirm that (a)
Anda may wish to sell, transfer or assign the telemarketing group which
provides the Telemarketing Services, to Cybear, who in turn will
thereafter provide such services to Cybearclub, and (b) Anda shall have
sole discretion as to whether it will provide Fulfillment Services for
any product which it does not presently stock for sale to its pharmacy
customer base.
3. Payment to Anda. In exchange for the Services, Cybearclub shall
initially pay Anda an amount equal to six (6%) percent of the
Cybearclub Gross Sales for the Services. This amount shall be
calculated and paid monthly, in arrears, and shall be payable by the
20th day of the following month, commencing February 1, 2000. For
purposes of this Agreement, "Gross Sales" shall mean the actual amount
invoiced by Cybearclub to its customers for the Products, before any
sales, discounts and/or other allowances including,
but not limited to, returns, rebates, promotions, shelf stock
adjustments, charge backs, and terms given to such customers in the
normal course of business by Cybearclub. Cybearclub acknowledges that,
when the Gross Sales are small, the six (6%) percent of Gross Sales
amount initially payable to Anda under this Agreement is less than the
Fair Market Value, as hereinafter defined, for the Services actually
provided by Anda. Accordingly, once Gross Sales reach a level of at
least $5,000,000 for two (2) consecutive calendar quarters (the
"Target"), this percentage of Gross Sales charged by Anda for Services
shall thereafter be increased to the Fair Market Value for the Services
actually provided by Anda plus two (2%) percent and shall be paid by
Cybearclub to Anda monthly in arrears payable by the 20th day of the
following month for the remainder of the calendar year. For purposes of
this Agreement, "Fair Market Value" shall mean the price at which a
willing seller of the Services would sell and a willing purchaser would
purchase the Services having full knowledge of the facts, in an arm's
length transaction without time constraints, and without being under
any compulsion to purchase or sell such Services. The parties agree
that the determination of the Fair Market shall be set initially upon
achievement of the Target and shall be re-set on the first of January
for each year after the Target is achieved. Once the Target is
achieved, if Gross Sales fall below the Target for two consecutive
calendar quarters, then for the immediately succeeding calendar quarter
until the Target is again achieved, Cybear shall pay Anda six (6%)
percent of Gross Sales for Services.
4. Term. The term of this Agreement shall commence on the Effective Date
and shall continue for three years, unless earlier terminated as
provided below.
(a) This Agreement may be terminated by mutual written agreement
of the parties, on the date they designate in such writing;
(b) This Agreement may be terminated by either party if the other
commits any material breach of any term of this Agreement and
which (in the case of a breach capable of being remedied)
shall not have been remedied within thirty (30) days of a
written request to remedy the same;
(c) This Agreement may be terminated, without cause, by either
party one hundred twenty (120) days after notice of same is
delivered to the other party.
5. Representations, Warranties and Covenants
(a) Each party hereto represents and warrants that it is duly
incorporated and organized, validly existing and in good
standing under the laws of its jurisdiction and that the
execution and delivery of this Agreement and the performance
of the transactions contemplated hereby have been duly
authorized by all necessary corporate actions and proceedings.
This Agreement is valid and legally binding upon the parties
and is enforceable against each party in accordance with its
terms, except to the extent that such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors
rights generally.
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(b) Each party hereto represents and warrants that it has the full
legal right, power, and authority to execute and deliver this
Agreement and perform fully its obligations hereunder and that
the execution, delivery, and performance of this Agreement by
such party do not and will not conflict with any note, bond,
mortgage or indenture, contract, agreement, lease, sublease,
license, permit, franchise, or other instrument or arrangement
to which such party is a party.
(c) There are no suits, actions, claims, investigations,
administrative proceedings, criminal, civil or quasi-civil
proceedings, pending or threatened by or against either party
which could have a potential adverse effect on the
enforceability or validity of this Agreement.
(d) No representation or warranty made by either party in this
Agreement is false or inaccurate in any material respect and
no statement of fact made by either party contains any untrue
statement of fact or omits to state any facts of which such
party is aware that is necessary in order to make the
statement not misleading in any material respect.
6. Confidentiality
(a) For the purposes of this Agreement, "Confidential Information"
means any information, whether written or oral, owned by or
pertaining to the party that discloses such information which,
if written, is marked "Confidential," and if provided orally
is indicated as confidential with a writing received no later
than thirty (30) days from the date the information is
disclosed (the "Disclosure"), provided, however, that
Confidential Information shall not include information: (i)
that is or becomes public other than as a result of acts by
the party receiving such information or any of its directors,
officer, employees, or representatives (the "Recipient"); (ii)
is, at the time of disclosure, already in the possession of or
known to the Recipient, other than if such possession was
gained from a third party under an obligation of
confidentiality; or (iii) is independently developed by the
Recipient without any direct or indirect use of any
Confidential Information provided by Disclosure.
(b) The parties shall not copy, reproduce, sell, assign, license,
market, transfer, give, or otherwise disclose Confidential
Information of the other to third parties, other than to such
party's director, officers, employees, agents, and
representatives who need to know such information for the
purposes set forth in this Agreement ("Permitted Agents"), or
use Confidential Information for any purposes not specifically
permitted hereunder, without the express, prior written
consent of the disclosing party. Without limiting the
generality of the foregoing, each party shall advise its
Permitted Agents of the confidentiality and non-disclosure
provisions contained herein, and each party, shall be
responsible for any and all breaches thereof by any and all
Permitted Agent(s).
(c) Neither party shall disclose, without the other party's prior
written consent hereof, the terms or conditions of, or other
substantive facts with respect to, this
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Agreement ("Other Protected Information") to any person other
than its directors, officers, employees, agents, and
representatives who need to know such terms, conditions, or
facts, to all of whom such party shall advise of the
confidentiality and non-disclosure provisions contained
herein, and such party shall be responsible for any and all
breaches thereof.
(d) In the event that either party is required by law or by
interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process to
disclose any Confidential Information of the other party, the
party so required to disclose will provide the other party to
this Agreement with prompt, prior written notice of such
request or requirement so that it may seek an appropriate
protective order and/or waive compliance with the provisions
of the Agreement.
(e) Each party acknowledges that the other will be irreparably
harmed if the other party's obligations under this Section 6
are not specifically enforced, and that the non-breaching
party would not have an adequate remedy at law in the event of
a violation by the other party of its obligations. Therefore,
each party agrees and consents that the non-breaching party
shall be entitled to an injunction or any appropriate decree
of specific performance for any violation or breach thereof
either by such party or its employees or agents.
(f) The parties shall be prohibited from soliciting any employees
of the other at any time during the Term and for a period of
one (1) year thereafter. If any party breaches the foregoing
obligation, the other party shall be entitled, in addition to
equitable relief and any remedies available at law, to be
compensated by such party in an amount equal to two hundred
(200%) percent of such employee's last annual salary.
7. General
(a) Notice. Unless otherwise agreed to by the parties, all notices
required under this Agreement (except those relating to
product pricing, changes and upgrades) will be deemed
effective when received and made in writing by either (i)
registered mail, (ii) certified mail, return receipt
requested, or (iii) a national overnight courier service,
addressed and sent to the attention:
Cybear, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Chief Operating Officer
Anda, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx, General Counsel
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(b) Construction.
(1) Headings. The headings of this Agreement are provided
for reference only and will not be used as a guide to
interpretation.
(2) Order of Precedence. In the event of inconsistency
between or among the various Agreement documents, the
following order of precedence will govern
interpretation:
(i) This document and its Exhibits; and
(ii) Documents incorporated by reference.
(c) Compliance with Laws. Each party will, at its own expense,
comply with any governmental law, statute, ordinance,
administrative order, rule or regulation relating to its
duties, obligations and performance under this Agreement and
will procure all licenses and pay all fees and other charges
required thereby.
(d) Taxes. Each party will have sole responsibility for the
payment of all taxes and duties imposed by all governmental
entities, as they pertain to its duties, obligations and
performance under this Agreement.
(e) Force Majeure. Neither party will be held liable for failure
to fulfill its obligations other than payment obligations
under this Agreement, if the failure is caused by flood,
extreme weather, fire, or other natural calamity, acts of
governmental agency, or similar causes beyond the control of
such party, and the term for performance will be increased to
a reasonable period of time.
(f) Assignment. Neither party may sell, transfer, assign, or
subcontract any right or obligation set forth in this
Agreement without the prior written consent of the other
party, which consent will not be unreasonably withheld. Any
act in derogation of the foregoing will be null and void.
Neither party may sell, transfer, assign, or subcontract this
Agreement, except as expressly provided herein or therein,
without the prior written consent of the other party.
Notwithstanding the foregoing, Cybear shall have the right to
assign this Agreement without Anda's consent to any entity
which acquires all or substantially all of Cybear's assets in
stock or in the event such party is merged or reorganized
pursuant to a plan of merger or reorganization.
(g) Dispute Resolution. (i) Any claim, controversy or dispute,
whether sounding in contract, statute, tort, fraud,
misrepresentation or other legal theory, whenever brought and
whether between parties to this Agreement or between one of
the parties to this Agreement and the employees, agents or
affiliated businesses of the other party, will be resolved by
arbitration as prescribed in this paragraph. (ii) A single
arbitrator engaged in the practice of law will conduct the
arbitration under the then current commercial arbitration
rules of the American Arbitration Association ("AAA"). The
arbitrator will be selected in accordance with AAA procedures
from a list of qualified people (i.e., knowledgeable in the
industry to which this Agreement applies) maintained by AAA.
The arbitration will be
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conducted in Boca Raton, Florida, and all expedited procedures
prescribed by the AAA rules will apply. (iii) The arbitrator
will have authority to award compensatory damages only and
will not have authority to award incidental, consequential,
exemplary or punitive damages, or non-compensatory damages
(including, without limitation, damages for loss of business,
profits or revenues, loss of goodwill, business interruption,
or failure to realize expected savings) or any other form of
relief; provided, however, either party may apply to any court
having jurisdiction thereof solely for the entry of injunctive
relief to maintain the status quo until such time as the
arbitration award is rendered or the controversy is otherwise
resolved. Each party will bear its own costs and attorney's
fees and the parties will share equally the fees and expenses
of the arbitration. The arbitrator's decision and award will
be final and binding, and judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction
thereof. (iv) If any party files a judicial or administrative
action asserting claims subject to arbitration, as prescribed
herein, and another party successfully stays such action
and/or compels arbitration of said claims, the party filing
said action will pay the other party's costs and expenses
incurred in obtaining such stay and/or compelling arbitration,
including reasonable attorney's fees and court costs.
(h) Governing Law. The validity, construction, and performance of
this Agreement will be governed by the substantive law of the
State of Florida without regard to the conflicts of law
provisions thereof.
(i) No Other Rights. This Agreement will not be construed to grant
any rights by implication, estoppel, or otherwise, that are
not granted through its express provisions.
(j) Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be contrary to law, the
remaining provisions of this Agreement will remain in full
force and effect and will be interpreted, to the extent
possible, to achieve its purposes without the invalid, illegal
or unenforceable provision.
(k) Entire Agreement. The provisions of this Agreement as in
effect from time to time by their terms, constitute the entire
Agreement between the parties and supersede all prior
Agreements, oral or written, and all other communications
relating to the subject matter of this Agreement. Any terms
contained in invoices, acknowledgments, or other forms that
are inconsistent with or different from the terms of this
Agreement will be void and of no effect.
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SIGNATURES
The parties have caused this Agreement to be executed by their duly authorized
representatives.
Anda, Inc. Cybear, Inc.
Signature: Signature:
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Name: Name:
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Title: Title:
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