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EXHIBIT 99.8
TIMELY DEVICES INC.
DISTRIBUTORSHIP AGREEMENT
This agreement dated the 4th Day of June , 1999.
Between:
Timely Devices Inc., a company incorporated under the laws of
the Province of Aberta, Canada. (herein the "Supplier")
and
Technilab Pharma, a company carrying on business in the Country
of Canada (herein the "Distributor")
WHEREAS:
A. The Supplier is the owner of certain technology permitting it to
create the ALR prescription reminder system and associated
products (the "System");
B. The Distributor wishes to acquire from the supplier the right to
sell the System;
C. The Supplier is willing to grant the Distributor the exclusive
right to sell the System, within the territory and upon the
terms and conditions set out herein.
NOW THEREFORE IN CONSIDERATION OF THE MUTUAL PRESENTS AND COVENANTS
CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
1. Grant of Distribution Right
The Supplier grants to the Distributor the exclusive right to
sell the System within the geographical boundaries attached
hereto as Schedule "A" (the "Territory").
2. Products supplied by the Supplier
The Supplier agrees to supply to the Distributor with all of the
System, manufactured, sold, or distributed by the Supplier.
3. System Prices
A. The price of the System shall be FOB Edmonton, Alberta,
Canada. The Supplier shall be responsible for all
additional charges including postage, insurance, freight,
import taxes and duties incurred in the course of
delivering the Products to any location other than
Edmonton, Alberta, Canada.
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B. The System shall be supplied by the Supplier to the
Distributor at the Supplier's CDN Distributor price
"Schedule B".
C. The Supplier's CDN Distribution price, is subject to change
with 30 days notice.
4. Delivery
A. Delivery shall be prepaid by the Supplier to the
Distributor with a minimum order of CDN$2500.00. The method
of shipping and the carrier shall be at the sole
discretion of the Supplier.
B. Orders less than the CDN$2500.00 will be shipped as
specified by the Distributor. Freight charges will be
billed directly to the Distributor or the shipment will be
shipped "freight collector".
C. Orders placed by the Distributor can be dropped shipped to
another location at the request of the Distributor. All
costs incurred for these shipments will be billed to the
Distributor's account.
5. Delivery Schedule
A. Upon receipt of an order from the Distributor, the Supplier
shall immediately advise of the delivery schedule for the
System and unless the Distributor advises the Supplier
within two business days thereof to the contrary, it shall
be deemed to have agreed to the delivery schedule as
provided by the Supplier.
B. Back orders shall be billed at the price in effect when the
order was placed.
C. Shipping of back orders shall be billed according to the
terms of the originating order.
6. Term
The term (hereinafter the "Term") of this Agreement shall be twelve
(12) months commencing upon the signing of this agreement and one (3)
successive renewal for the term of twelve (12) months unless either
party terminates the Agreement upon 60 days prior notice.
7. Minimum Order
An initial order of not less than CDN$650.000.00 of the System shah
be placed by the Distributor upon execution of this agreement,
failing which this agreement shall be null and void.
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8. Minimum Annual Order
The Distributor shall place a minimum annual purchase (aggregate) of
not less than CDN$750,000.00 of the System no later than 181 days
after the date of this Agreement, failing which the Supplier may, at
its sole option, terminate this Agreement and award the Territory to
any other party without prejudice to its rights hereunder. All sales
in the Territory shall constitute credit toward the minimum annual
order.
9. Payment Terms
Payment terms for the minimum initial order of not less than
CDN$650,000.00 of the System shall be CDN$25,000 upon signature,
$75,000 at 1 September 1999 the balance shall be 25% down upon
purchase order and 75% upon delivery. Subsequent orders shall be
paid 25% down upon the purchase order and the balance paid upon
terms mutually agreed upon.
10. Assignment
The Distributor shall not have the right to assign, transfer,
sublicense, sublet or encumber all or part of its interest in
this agreement, or the rights granted to it, without the prior
written consent of the Supplier (which consent shall not be
arbitrarily or unreasonably withheld), provided that the
assignee covenants to observe and perform all provisions of this
agreement, mutatis mutandis, and further provided that such
assignment, transfer, sublicense, sublet or encumbrance shall in
no way discharge the Distributor from any of its obligations
hereunder including without limitation the obligation to the
minimum purchase requirement during the term of this agreement.
11. Marketing
For the purpose of facilitating the sale of the System:
A. the Supplier shall promptly make available to the
Distributor, at the Supplier's cost price, all promotional
materials, including without limitation posters, brochures,
product highlight sheets, and catalogues relating to
the System;
B. the Supplier shall authorize and grant the Distributor the
right and license to use the trade name or trade marks
associated with the System as set forth in "Schedule C"
hereto, the sole purpose of promoting the System; and
C. the Distributor shall display, utilize and promote in all
of its advertising or marketing initiatives the Supplier's
trade name and trade marks.
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D. the Supplier shall commit to an annual marketing budget of
up to 25% of the total purchases during each term of the
agreement, it shall be paid in accordance with cooperative
funding and shall require mutual consent by both parties.
Use of these funds shall remain the sole discretion of the
Supplier.
12. Supplier's Product Warranty and Servicing
A. The Supplier shall warrant all System for parts and labour
for a period of forty-five (45) days from the date of
purchase by the end user of the products from the
Distributor. The Programming Station shall have a lifetime
warranty under normal use. All servicing pursuant to this
provision shall be conducted at the Supplier's facility in
Edmonton, Alberta, Canada. The Distributor shall be
responsible for all shipping charges incurred in sending
the Products to the Supplier's facilities in Edmonton,
Alberta, Canada.
B. Except for the express warranties stated herein, the
Supplier disclaims all warranties for or related to the
System or their use, including without limitation all
implied warranties or merchantability or fitness. The
Supplier's liability shall in no circumstances exceed the
amounts paid by the Distributor for the unit of the System.
No claim for damages, including but not limited to special,
indirect or consequential loss arising out of or in
connection with the use or performance of the System shall
be chargeable to the Supplier, whether for loss of profit,
injury, or otherwise.
13. Right to Use Technology
The Supplier warrants to the Distributor that it is either the owner
of, or lawfully entitled to use, apply, alter, and modify the
technology utilized by or incorporated into the System, and that it
has the sole right to grant the within distribution rights free of
any restrictions, except as set out herein. The Supplier shall
indemnify the Distributor from any intellectual property claims in
the Territory.
14. Distributor to Cooperate
The Distributor covenants with the Supplier that it will not during
the term of this Agreement or any extensions thereof raise or cause
to be raised any questions concerning or any objection to the
validity of any claim of the Supplier to manufacture, sell or use the
technology, trademark, trade name, copyright, patent, literary,
artistic, dramatic, personal, private, civil, or property right or
the right to privacy, or any other right of any person, firm or
corporation, utilized by or incorporated into the Products on any
grounds whatsoever, and further agrees not to aid others in so doing.
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15. Invention and Innovation
Any invention or innovation relating to the System, or the use of the
System, protectable by patent, copyright or other legal proprietary
protection made or conceived during the term of this agreement
whether by the Supplier or the Distributor, or their respective
agents, servants and employees shall be the sole property of the
Supplier.
16. Confidentiality
The Distributor and the Supplier mutually acknowledge the proprietary
interest of each party to the information and materials which each
party is bound to disclose or otherwise make available to the other
party by virtue of this agreement. The Distributor and Supplier
mutually covenants to keep confidential and secret all information
and materials disclosed or otherwise made available pursuant to this
Agreement, except with the prior written consent of the Supplier. The
Distributor shall take all steps necessary and reasonable to maintain
the confidentially contemplated herein and shall ensure the
Supplier's interests herein are protected by the safeguarding of the
System and the information referred to herein.
18. Disruption in Supply
In the event that the Supplier is unable to supply the System due to
disruptions in shipping, acts of civil or military authorities,
strikes, lockouts, embargoes, acts of God, or any other factors
beyond the Supplier's control, then the minimum annual purchase
amount required of the Distributor shall xxxxx proportionately for
such period of time during which supply is interrupted, and the
Supplier shall not be liable to the Distributor for any loss or
damages as a result of such interruption in supply.
19. Termination
This Agreement shall terminate at the discretion of the
non-defaulting party in the event of:
A. the bankruptcy of either party hereto; or
B. the winding up or liquidation of either party hereto; or
C. loss, by the Supplier, of the right to manufacture, sell or
use the patent or technology utilized by or incorporated
into the Products; or
D. the Distributor fails to make either the minimum initial
order or minimum annual order; or
E. the Distributor fails to make or abide by the payment terms
herein; or
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F. the Distributor sells or distributes the System outside the
Territory or resale outside the Territory.
The Distributor shall have the right to sell any remaining inventory
of the System or similarly, in the event that the Distributor loses
its right to sell the System because of a breach by the Supplier or
an infringement action against the Supplier, the Supplier shall
purchase back all units in the Distributor's inventory and all the
associated costs of shipping and handling.
20. Waiver of Rights
The failure of either party to require performance by the other party
of any provision herein shall not in any way affect the full right to
require such performance at any time thereafter. Nor shall a waiver
by either party of a breach of any provision hereof constitute a
waiver of the provision itself.
21. Notice
Any notice required to be served by the Supplier shall be deemed to
be served if delivered by prepaid courier, registered mail,
facsimile, and shall be deemed to have been received upon the actual
date of delivery if by courier, 72 hours following the posting if by
registered mail, or the time of confirmation of receipt if by
facsimile, to:
Timely Devices Inc.
XX Xxx 00000
Xxxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0
Facsimile: (000) 000-0000
or
Mssers Xxxxx & Company
Attn. Xxx Xxxxxxxxxx
0000 Xxxxxxxx Xxxxx
00000 - 000 Xxxxxx
Xxxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0
Facsimile. (000) 000-0000
Technilab Pharma
00000, xxx Xxxxxxxx
XXXXXXX XXXXXX X0X 0X0
Xx. Xxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
23. Time is of the Essence
Time is of the essence in these presents.
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24. Law to Govern
This agreement shall be governed by the Laws of the Province of
Alberta, Canada.
25. Severability
Should any part of this agreement be declared void, voidablity or
otherwise unenforceable by any competent Court having jurisdiction
over the matter, the remaining provisions shall continue to remain in
full force and effect.
26. Inurement
This agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
27. Amendments and Alterations
This agreement may not be altered or amended except in writing
executed by both parties.
28. Entirety of Agreement
This agreement is the entire agreement between the parties, and there
are no representations, conditions understandings or agreements other
than those expressly set forth herein.
IN WITNESS WHEREOF the parties have duly executed this agreement as
of the day and year first written above by affixing their respective
corporate seals under the hands of their proper signing officers duly
authorized in that behalf.
Timely Devices Inc. Technilab Pharma
Per: /s/ illegible Per: /s/ illegible
SCHEDULE A
THE TERRITORY
1. The Territory as agreed to herein is the Country of;
Canada
2. In the event that there is a customer with outlets in more than
one Territory, it shall be deemed that the responsible
Distributor is that in whose Territory resides the head office
of the Customer.
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SCHEDULE B
THE PRICE LIST:
PART NUMBER DESCRIPTION DISTRIBUTOR PRICE RETAIL PRICE
10101 Programming $125.00 $195.00
Station
10102 ALARM 8.75 10.00
10103 Set Up Kit 30.00 40.00
10104 ALR(tm) 12.00 20.00
Custom label
10105 Patient Cards 7.50 10.00
(250)
10106 Tent Cards 10.00 15.00
(10)
10107 Desk Mat 2.50 3.75
10108 AC Adaptor 6.50 11.00
(12OV)
Prices are subject to change without notice. Prices are in CDN
Dollars, FOB Edmonton, Aberta, Canada,
Printed material in English & French only.
SCHEDULE C
TRADE NAME AND TRADE MARKS
A Little Reminder in Canada, ALR(tm) in United States.
Timely Devices Inc. trade name in Canada.
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TDI A Little Reminder
Timely Devices Inc. ALR
PURCHASE ORDER
June 4, 1999
Invoice: Technilab PO: Jacques Bolsvert Order: House
Shipped on: Via: Courier Back order: NO
Item Quantity Unit Price Total
Programming Station 750 $125.00 $ 93,750.00
ALR(tm) 75,000 $ 8.75 $656,250.00
Labels/Store Package 750 $ 30.00 $ 22,500.00
Shipping/Handling $ 10.00
Extra Clips 75,000 $ 0.05 $ 3,750.00
Subtotal $776,260.00
GST $ 54,338.20;
TOTAL $830,598.20
Terms: As per Section 9, Payment Terms, Distribution Agreement.
GST #898316278RT
Accepted on behalf of Technilab Pharma
______________________________________
00000 - 000 Xxxxxx, Xxxxxxxx, XX X0X IS7
Phone (000) 000-0000 Fax (000) 000-0000
