SALES MARKETING AND DISTRIBUTION AGREEMENT
AGREEMENT made, as of this 13th day of August, 1999 (the
"Agreement") by and between Med Gen Inc., ("MGI") a corporation
organized and existing under the laws of the State of Nevada
having its principal address at 0000 Xxxxx Xxxx, Xxxxx 000,
Xxxxx, Xxxxxxx 00000 ("Med Gon Inc.") and Allergy Research
Laboratories, LLC, 000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 a corporation organized under the laws of the
Commonwealth of Kentucky ("Manufacturer" or "ARL")
W I T N E S S E T H:
WHEREAS, MGI has represented to ARL that it wishes to obtain
exclusive sales, marketing and distribution products to the
existing Sneeze No More product, and;
WHEREAS, MGI has, at its expense, produced an infomercial
which It proposes to air nationally and/or internationally to
promote the sales of ARL s existing product line, and;
WHEREAS, ARL is desirous of sailing its existing product
line and assigning its rights and duties under certain
contractual obligation. to MGI, and;
WHEREAS, ARL is willing to grant MCI an exclusive worldwide
sales, marketing dnd distribution rights as set out herein.
FOR GOOD AND VALUABLE CONSIDERATION AND IN EXCHANGE FOR THE
MUTUAL PREMISES CONTAINED HEREIN, IT IS HEREBY MUTUALLY AGREED AS
FOLLOWS:
1. APPOINTMENT:
(a) On the terms and conditions set forth below, and in
consideration of the mutual Covenants contained herein,
Manufacturer appoints MCI as its exclusive sales, marketing and
distribution agent as more particularly explained in Exhibit A
attached hereto and made a part of this Agreement. This Agreement
pertains to the Sneeze No More product line end other products
that ARL might so designate by addendum to this contract.
(b) MGI agrees to pay ARL under the terms and conditions as
set forth in the PRICE SCHEDULE that is made a part of this
Agreement.
2. CHARGEBACKS:
Should the product be defective, or packaged defectively by
ARL, then in that event, MGI will notify ARL in writing of such
event and MCI return the product to ARL for full credit not to
exceed the purchase price from ARL to MGI.
3. TERRITORY:
During the term of this Agreement, MGI may solicit orders
for the Products from accounts worldwide and will have exclusive
rights for sales, marketing and distribution as represented by
this Agreement (see Exhibit A). Notwithstanding this grant of
exclusivity, ARL has contractual commitments and obligations and
reservations of certain markets as disclosed in Exhibit "A". ARL
is willing to assign the Amway account to MGI by separate
agreement which shall require MGI to indemnify and hold harmless
ARL for the performance of its obligations thereunder.
4. TERM AND TERMINATION:
The term of this Agreement shall commence on the date above
and continue in force until terminated pursuant to Paragraph 5.
5. TERMINATION:
(a) No party may terminate this Agreement without
giving the other party sixty (60) days written notice unless
termination is caused by acts that would cause irreparable harm
to either MGI or Manufacturer.
(b) Notwithstanding the-provisions of subparagraph (a),
either party may terminate this Agreement upon twenty-four (24)
hours written notice if a trustee or receiver is appointed for
or applied for by the other party, or if the other party ceases
to function as a going business or to conduct operations in
the normal course of business as contemplated by this Agreement.
(c) Notwithstanding anything to the contrary, in this
Agreement in the event of termination of this Agreement, for
any reason, MCI shall be obligated to pay Manufacturer for any
invoices outstanding and due.
6. RESPONSIBILITIES OF MGI AND MANUFACTURER:
MCI agrees that it will observe and strictly adhere to
the following requirements: (1) no oral or written statement
will be made to any prospective purchaser of Manufacturers
products which is contrary to the facts end provisions set
forth in the promotional material supplied to MCI from time
to time by Manufacturer.
Manufacturer agrees that it will supply MCI with
documentation that will support the manufacturer claims and
representations. Further, Manufacturer will hold MCI
harmless for any actions, legal or otherwise, emanating
from claims and representations made by Manufacturer to MGI
and provided for in the documentation delivered to MCI
supporting sold claims and representations. Manufacturer
further agrees that it will pay all costs, including court
costs and attorney's fees should MCI incur any judgment
based upon finding that Manufacturers claims were false or
misleading.
7. MUTUAL IDEMNIFICATION:
Manufacturer shall Indemnify and hold MGI harmless
from and against any and all judgements which result claims,
demands, loss or damage arising out of copyright and/or
trademark infringement or impure, adulterated, mislabeled,
misbranded or defective Products sold by ARL to MGI prior
to or during the term of this Agreement or any other claim
relating to the Product not directly caused by the
negligence of MGI, including without limitation, reasonable
expanses and/or attorneys fees expended by MGI in the
defense of the claim which results in a judgment.
MGL shall indemnify and hold Manufacturer free and
harmless from and against any and all claims, demands, loss
or damage in any way arising out of, or based upon claim,
arising out of the actions that MCI might have made
relating to the sale and/or distribution of products
manufactured by ARL. Specifically, claims that are made and
are not authorized by Manufacturer on Infomercials, radio
broadcasts and other advertising materials produced, but
not approved by Manufacturer including reasonable expenses
and/or attorney s fees expended by Manufacturer in the
investigation or defense of any claim.
8. COMPETITORS REPRESENTED:
MGI agrees that while this contract is in full force
and effect, MGI will not offer for sale, distribution or
otherwise market a like product.
9. INDEPENDENT CONTRACTOR:
MCI represents that It is an Independent Contractor
and as such is not under the direct control of the
Manufacturer. MGI agrees to pay for its own expenses and
other related expenses and costs in the daily running of
its business; and, unless, expressly provided for in a
separate-agreement, such as industry conferences and
conventions, the Manufacturer will not be made responsible
for any of these expenses unless provided for in writing
and signed by both parties.
10. RIGHT OF FIRST REFUSAL:
ARL agrees to allow MGI the right of first refusal in
the marketing/distribution and sales of any new products
developed by the Manufacturer. MGI will be given three (3)
months to produce a suitable marketing plan for the
contemplated product(s).
11. NOTICE:
Any notice required herein to be given In writing
shall be sent by regular or overnight xxxx or faxed to the
other party as follows:
If to Med Gen Inc.:
Med Gen Inc.
Attn: Xxxx X. Xxxxxxxx
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
If to Allergy Research Laboratories, LLC:
Allergy Research Laboratories, LLC
Attn: Xxx Xxxxxxx, President
P.0. Xxx 0000
Xxxxxx, XX 00000
12. COMPLIANCE WITH APPLICABLE LAW:
The parties each agree that in performing their
respective obligations under this Agreement, they will comply
with all applicable federal, state and local statutes, rules
and regulations.
13. MISCELLANEOUS PROVISIONS:
(a) Neither party to the Agreement is an agent,
representative or employees of the other, but rather is an
independent business and all obligations of any kind by
either party are the sole obligations of the party incurring
the obligation.
(b) This Agreement shall be construed and interpreted
in accordance with arid shill be governed by the laws of the
Commonwealth of Kentucky.
(c) This Agreement is not assignable by either party.
(d) The terms of this Agreement can only be changed
amended or modified In writing signed by duly authorized
individuals of both parties.
(e) MGI and Manufacturer agrees that this Agreement
end any applicable schedules will be the complete and
exclusive statement of the Agreement, between the parties,
superseding all proposals or prior agreements, oral or
written, and all other communications between the parties
relating to the subject matter hereof.
(f) Both parties will initial each page of this
Agreement, Including Schedule "A" and "B".
14. FORCE MAJEURE:
Neither party shall be considered to be in default In
the performance of Its obligations under this Agreement, to
the extent that the performance, of any much obligation is
prevented or delayed by any cause, which is beyond the
reasonable control of the affected party.
15. SALES FORECASTING:
MGI shall communicate to ARL its best estimate of sales
forecast as they become available. MGI end ARL recognize the
difficulty In formulating such forecasts and ARL shall apprise
MGI of its production capabilities. Presently MGI has estimated
sales per week up to 250,000 units per week. ARL will need up to
eight (8) weeks to establish production capacities at this higher
range. The parties agree to work in concert during the term of
this Agreement so that MGI can provide sufficient lead time to
ARL in order for ARL to expand production requirements beyond
those presently forecast.
16. COUNTERPARTS:
This Agreement may be executed in several counterparts, and
all so executed shall constitute one agreement, binding on each
of the parties, notwithstanding that all the parties are not
signatory to the original or the same counterpart.
Allergy Research Med Gen, Inc.
Laboratories, LLC
By: Xxx Xxxxxxx By: Xxxx X. Xxxxxxxx
Title: President Title: President
Signature: /s/Xxx Xxxxxxx Signature:/s/Xxxx X. Xxxxxxxx
Date: 9/20/99 Date: 9/17/99
Witness: /s/ Witness: /s/
EXHIBIT A
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Territory
Sales Number: LC-152
Electronic Media: (Television, Radio, and Direct Sales-Mail Order)
Exclusive worldwide distribution rights. Exceptions
1. Amway Contract assigned only during the term of this
Agreement to MGI.
2. Those markets reserved to SF1, Inc. (the-Licensor) such
as physicians, medical catalogues, etc. Specific
markets excluded available on request.
3. Marketing through the internet or worldwide web shall
be assigned to MGI during the term Agreement by separate
agreement mutually satisfactory to both parties.
EXHIBIT B
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TERMS OF SALE
Price List
Item Item Description Size Bottle w/sprayer
----------------------------------------------------------------------
10001 Sneeze No More-Plants Pint $3.15
20001 Sneeze No More-Cats - -
30001 Sneeze No More-Dogs - -
40001 Sneeze No More-Dust Mite - -
50001 Sneeze No More-Cockroach - -
60001 Sneeze No More-Mold & - -
Mildew
PRICE: ARL guarantees all pricing for one year from date
of acceptance of this contract. Price includes 15 oz white
bottle, front und back label (as provided). Liquid product
as described on Label Cap. Packed 12 bottles in a
cardboard box.
FRIEIGHT: F.O.B. Factory (Louisville, KY)
ALLOWANCES AND QUANITITY DISCOUNTS: NONE
MINIMUM ORDER: Full Pallets consisting of 72 cases packed 12
pint bottles per box-Pallets may be mixed full cases of
separate, product per box.
PAYMENT TERMS: 10% PRE-PAYMENT WITH ORDER. Balance due net
30 days. Unpaid balances over 30 days shell bear interest at
the rate of 1-1.2% per month (18% per annum) and MGI shall
be responsible for costs of collection including reasonable
attorney s fees incurred by ARL to collect any unpaid balances.
WARRANTIES: ARL warrants to the end user a money back
guarantee which it will honor upon proof of purchase and
return to MGI by an end user. ARL's warranty is limited
solely to the purchase price of the product to MGI and
return of the product to ARL F.O.B. Manufacturer.
The express warranty above is given in lieu of all
other warranties, express or implied, whether statutory or
otherwise. ARL shall not be liable for any damages whether
in contract or tort. Damages are limited to the return of
the purchase price as set out above. ARL shall not be
liable for any other injury or loss, damage or expense
whether direct or consequential, including but not limited
to, loss of income, lost profits or loss of use.
EXHIBIT C
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TERMINATION
The undersigned, Xxxx Xxxxxx individually and on behalf
of Xxxxxx Marketing, hereby terminates the agreement executed on
7/15/99 between Allergy Research Laboratories, LLC and Xxxxxx
Marketing.
/s/Xxxx Xxxxxx
XXXX XXXXXX
XXXXXX MARKETING
BY: /s/Xxxx Xxxxxx
XXXX XXXXXX
