EXHIBIT 10.58
NON-EXCLUSIVE DISTRIBUTION AGREEMENT BETWEEN
STAYHEALTHY, INC. AND PERFORMANCE HEALTH TECHNOLOGIES
This Distribution Agreement is made this 20th day of April, 2007,
between Performance Health Technologies ("Manufacturer") and Stayhealthy, Inc.
("Distributor"). Manufacturer desires to appoint Distributor, and Distributor
desires to accept an appointment, as a distributor for Manufacturer's products
as set forth herein. The parties are in agreement as follows:
1. RIGHTS GRANTED. Manufacturer grants to Distributor the non-exclusive right to
promote "Manufacturer's Products", as defined below. Nothing in this Agreement
will prevent the Manufacturer from directly promoting any of its products.
2. PRODUCTS. As used in this Agreement the term "Manufacturer's Products" shall
mean the products, related parts and accessories manufactured and sold by
Manufacturer for rehabilitation associated with recovery from stroke injury. It
is understood that from time to time additional products will be evaluated and
considered for inclusion within this Agreement.
3. TERMS. Distributor will be responsible only for representing the Products
through its website(s) and other promotional methods that may be agreed with the
Manufacturer from time to time. All costs associated with establishing the
distribution methods will be borne by Distributor. All orders for Manufacturer's
Products received by the Distributor will be relayed to Manufacturer who will
retain responsibility for shipping and fulfillment. Shipping costs will be borne
by the Manufacturer as will all costs associated with the risk of loss due to
damage or destruction during shipment. All customer support activities will be
the responsibility of the Manufacturer. All orders are subject to acceptance
from the Manufacturer.
The following payments will be made from Manufacturer to Distributor
during the Agreement:
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NUMBER OF UNITS ORDERED PER MONTH DISTRIBUTOR'S WHOLESALE PRICE
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1 - 100 $425.00
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101 - 500 $400.00
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501 & Up $375.00
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4. PAYMENT. Either party will pay the other all due payments, as appropriate
within 30 days of invoice. Each party will provide invoices within 15 days of
the end of each calendar month. Either party may impose a late payment charge of
one percent per month on overdue amounts.
5. MARKETING POLICIES. Distributor will promote vigorously the sale of
Manufacturer's Products using all channels of distribution available to
Distributor. All materials used to describe the Product will conform to
Manufacturer's established marketing policies and programs.
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Manufacturer will provide Distributor with merchandising assistance
from time to time including but not limited to Product literature, market
demographics, market research information, and customer feedback.
6. PRODUCT WARRANTY POLICIES. Manufacturer makes no warranty to Distributor with
respect to the Products, either express or implied, including without
limitation, and the implied warranties of merchantability or fitness for a
particular purpose. Manufacturer's Products may be returned by a customer within
30 days of its receipt to the Manufacturer for full reimbursement. Any product
that is found defective by a customer within one year of receipt will be
repaired or replaced by the Manufacturer at no cost to the customer.
7. INDEMNIFICATION. Manufacturer agrees to protect Distributor and hold
Distributor harmless from any loss or claim arising out of inherent defects in
any of the Manufacturer's Products existing at the time of sale, providing that
any such claim is notified to the Manufacturer by Distributor within five
working days of Distributor being aware of such claim.
8. ORDER PROCESSING. Manufacturer will employ its best efforts to fill
Distributor's orders promptly on acceptance, but reserves the rights to allocate
inventory at its discretion.
9. USE OF MANUFACTURER'S NAME. Distributor may use Manufacturer's name, logo or
trademarks in any advertising materials with Manufacturer's consent. Such
consent would not be unreasonably withheld.
10. RELATIONSHIP OF THE PARTIES. Neither Distributor nor Manufacturer shall have
the right to enter into any contract on behalf of the other, or commit the other
in any respect whatsoever.
11. TERM AND TERMINATION. The Agreement will expire one year from the date of
this Agreement. Notwithstanding this, either party can terminate this Agreement,
without cause, on 30 days written notice to the other party.
In the event the Manufacturer desires to extend this Agreement for a
further term, Manufacturer will notify Distributor of this intent at least 30
days prior to expiry of this Agreement. Both parties agree that in the event of
such notice, the parties would negotiate the terms for renewal in good faith.
Notwithstanding the above, the Manufacturer may terminate this
Agreement a) if Distributor does not fulfill or perform duties as described in
this Agreement, and does not remedy such failure within 15 days of being
notified of such, in writing, by Manufacturer, b) if Distributor is acquired by
another company, c) conviction in any court of the Distributor for practices
that could adversely impact on the good name, goodwill, or reputation of the
Manufacturer, or d) submission of fraudulent reports by the Distributor to the
Manufacturer in relation to performance of the obligations of this Agreement.
Distributor may also terminate this Agreement if Manufacturer a) fails to
perform according to the terms of this Agreement, b) if Manufacturer is acquired
by another company, c) if Manufacturer is convicted in any court of practices
that could negatively impact the reputation of Distributor, or d) submits
fraudulent reports to Distributor.
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12. OBLIGATIONS ON TERMINATION. On termination of this Agreement, Distributor
shall cease to be an authorized Distributor and remove all mention of
Manufacturer's Product from the distribution channels. In the event that
residual orders are still received through Distributor, Manufacturer will
continue to fulfill the payment obligations of this Agreement for a period of 3
months following termination.
13. ADDITIONAL CONSIDERATIONS. In consideration for the activities of
Distributor as required in this Agreement the Manufacturer agrees to carry a
link to the Distributor's website(s) on its website and to provide information
as deemed appropriate by both parties about Distributor.
14. NOTICES. All notices required by this Agreement will be in writing to the
Notice under this Agreement shall be sent by facsimile, certified mail, return
receipt requested, or Federal Express or other nationally recognized overnight
carrier to the following addresses or to such other addresses as the parties may
from time to time designate, in writing:
To Manufacturer:
Performance Health Technologies, Inc.
000 Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
Facsimile: 000-000-0000
To Distributor:
StayHealthy, Inc.
Xxxxxxx Xxxxx,
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Facsimile:
15. COUNTERPARTS. This Agreement may be executed in counterparts, and as so
executed, the counterparts shall constitute one and the agreement binding on all
Parties.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the year and date first written above.
PERFORMANCE HEALTH TECHNOLOGIES, INC.
By: /S/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
STAYHEALTHY, INC.
By: /S/ XXXX XXXXXXX
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Xxxx Xxxxxxx
Chief Executive Officer
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