SALES AND MARKETING AGREEMENT
Exhibit
10.126
This Sales and Marketing Agreement is
made and entered into in as of this 19th day
of May, 2008 by and between Performance Health Technologies, Inc., a Delaware
corporation (the "Company") and Interactive
Metronome, Inc., a Virginia corporation (the "Contractor").
RECITALS
The Company is engaged in the business
of manufacturing, distributing and marketing products known as “Home Products”
using its proprietary Core:Tx® Neuro technology for measuring a person’s range
of motion (the "Products"). The
Contractor markets the Interactive Metronome (“IM”) to the health care industry
and is desirous of also marketing the Products for the Company upon the terms
and conditions set forth below.
NOW, THEREFORE, in consideration of the
foregoing, and the mutual covenants and promises contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each party hereto to the other, it is agreed as
follows:
AGREEMENT
1. Appointment
as Distributor. The Contractor agrees to and shall solicit
sales of the Products to those accounts identified by the Contractor that are or
that may be interested in acquiring the Products.
2. Exclusivity. The
Contractor shall be the exclusive distributor of Products that include Core:Tx(R
encircled) Neuro in the United States and Canada (the “Territory”) for the
following markets:
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a)
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Neurological Rehabilitation
Market. Facilities that provide neurological and motor therapy to
adults who have suffered stroke, brain injury and other neuro-muscular
disorders provided that sales efforts are directed to the Contractor’s
contacts in the areas of the rehabilitation facilities that treat the
individuals referenced above regardless of whether they are IM
customers.
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b)
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Pediatric and Developmental
Market.
Clinics and hospitals that typically work with children diagnosed
with cognitive and motor discrepancies, such as Autism Spectrum Disorders,
sensory integration disorders, and a range of speech and language
disabilities, provided that sales efforts are directed to the Contractor’s
contacts in the areas of the clinics and hospitals that treat the
individuals referenced above; and
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c)
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Specialists. Physical
therapists, occupational therapists and speech therapists who enroll and
participate in IM’s Certification or CEU
programs.
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The Contractor is hereby appointed as a
non-exclusive distributor for the Products with respect to all other markets
within the Territory; the Contractor acknowledges that the Company may appoint
an exclusive distributor for any or all such markets during the Term hereof, if
so the Contractor shall respect that exclusivity.
The Contractor acknowledges that sales
of “Home Products” not using Core:Tx(R encircled) Neuro are non-exclusive and
any sales, including Core:Tx(R encircled) Neuro, in other markets (including,
but not limited to orthopaedics) is on a non-exclusive basis.
The exclusivity granted to Contractor
by the Company becomes null and void should Contractor fail to sell one
hundred twenty (120) Core:Tx(R encircled) Neuro units during the first
eight (8) months of this Agreement, and an additional one hundred twenty (120)
Core:Tx(R encircled) Neuro units during the remaining four (4) months of the
Agreement (two hundred forty (240) units total during term).
3. Product
Sales.
A. The parties shall agree
upon suggested retail selling prices for the Products, which will be
periodically revisited and may be adjusted from time to time based on market
conditions and feedback.
B. The Contractor
shall order Products from the Company to meet its estimated needs and the
Company shall ship such Products to the Contractor. Contractor will
receive a fifty percent (50%) sales commission from Company on the first one
hundred twenty (120) units sold of the company’s Core:Tx Neuro, and a sixty
percent (60%) sales commission on all sales thereafter during the term of this
Agreement. Contractor will collect an annual license fee of $300.00
from each customer. Contractor is to receive thirty percent (30%) of
this license fee and the company receives the remaining seventy percent
(70%). The commission for the Home Products shall be fifty percent
(50%) of the agreed upon retail selling price for the Home
Products. The Products shall be shipped FOB the Company’s place of
shipment, and title to the Products and risk of loss shall transfer to the
Contractor upon placement of the Products with the carrier. The
purchase price shall be payable one-half (1/2) upon submission of a Purchase
Order, and one-half (1/2) upon delivery of the Products to Contractor
and completion of any acceptance testing agreed to by the parties.
4. The
Company's Obligations. The
Company shall supply the Contractor with appropriate sample Products, catalogs
and advertising materials which shall be reasonably necessary to assist the
Contractor in making and promoting sales of Products. The Company
will fund the Contractor’s development and implementing of certification courses
designed specifically for Core:Tx(R encircled) Neuro products. The
Company will work with the Contractor on a joint marketing plan to maximize the
effectiveness of marketing efforts by both.
5. The
Contractor’s Obligations. The Contractor shall
use all commercially reasonable efforts to promote the Products, and
specifically agrees that it shall:
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Develop
a website directed at Occupational, Physical and Speech Therapists. This
site would be linked to and from the Contractor’s
website.
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Have
its Clinical Advisory Board develop a clinical education tool specifically
designed for Core:Tx(R encircled) Neuro and creating certification
courses.
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Incorporate
the clinical education tool into the Contractor’s national certification
course schedule.
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Display
and demonstrate the Products at regional or national trade shows where the
IM is also displayed.
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Promote
the Products throughout its 4,000+ professional
network.
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Promote
the Products as a complementary supportive product of the
IM.
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Demonstrate
and sell the Products in person or through the Contractor’s dedicated
telephone marketing staff, and develop an advertising and mailing
program. All materials developed by the Contractor specifically
for the Company’s products become the sole property of the
Company.
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6. Warranties.
The Contractor shall not make any warranties with respect to the Products of the
Company. Any warranties to be made by the Company shall be reflected
in its acceptance, invoice or other contract forms.
7. Term. This
Agreement shall be for a term of one year. This Agreement may be
terminated by the Company immediately upon the Contractor's material breach of
any provision of this Agreement including, but not limited to the Contractor's
inability to perform its obligations herein for financial reasons or
otherwise.
8.
Relationship
of Parties. The Contractor is and at all times shall be an
independent contractor of the Company and not a partner or employee of the
Company. The Contractor shall represent itself to all Customers and
all other persons only as an independent contractor and not as an agent or
partner of the Company. Remuneration to the Contractor shall not be
subject to withholding or other employment taxes as required for compensation
paid to employees. The Contractor shall timely file all required
United States federal, state and local income, self-employment, unemployment and
other tax, labor, information and all other returns and shall pay when due all
taxes on account of its remuneration hereunder. The provisions of the
preceding sentence shall survive the termination of this Agreement.
9.
Expenses. The
Contractor shall be responsible for and shall pay, and hereby indemnifies the
Company against, all expenses incurred in connection with soliciting the sale of
the Products, with the exception of any advertising campaigns recommended by the
Contractor that the Company agrees to in advance and in writing.
10. Confidentiality.
A. Each
party agrees that it will not, at any time during the term of this Agreement or
thereafter, in any form or manner, directly or indirectly, voluntarily or
involuntarily,
disclose, furnish or make accessible to any person or other entity or use for
its own benefit, other than in furtherance of the business and interests of such
party, any Confidential Information (hereinafter defined) of the other party
which it may obtain or have access to, receive, contribute to, originate, or
discover relating to Trade Secrets (as that term is defined under all applicable
laws), products, customers, prospective customers, services and sales
information. Confidential Information shall include, without
limitation, any of the following types of information outside of the public
domain:
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(i)
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Any
and all forms of raw and other data relating to the other party’s
business, products or processes, whether or not marked "confidential", derived
from any and all sources, including without
limitation: meetings; information from correspondence or
otherwise analyzed data; computer printouts; computer programs; flow
charts; graphs and graphic
materials.
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(ii)
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Any
and all materials, documents, information, systems, processes and
techniques relating to products, computer software, market or other
research techniques, and any and all materials, documents, information,
systems, processes obtained from or on behalf of or at the direction of
the other party, or any current or prospective customer of the other
party.
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(iii)
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Any
and all information, computer printouts, materials, documents, processes,
schematics, compilations or reports relating to the sales history of any
current or prospective customer, customer files, pricing structure,
rebates, marketing information, customer base or business forms of the
other party.
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B. The
Contractor confirms, acknowledges and agrees that any and all tangible and
intangible records, tapes, notes, pictures, video tapes, printouts and documents
relating to the Products which it may use, create, utilize or possess during the
term of this Agreement, including but not limited to those written, produced or
created by the Contractor, are the sole and exclusive property of the Company
and may not be duplicated for the Contractor's own benefit without the express
written consent of the Company. All such items in the Contractor's
possession or control will be immediately delivered to the Company upon request
and, if not earlier requested, upon the termination of this
Agreement.
C. The
provisions of this Section 10 shall survive termination of this Agreement, and
shall survive the Term of this Agreement for a period of four (4) years
following termination of the Agreement.
11. Restrictive
Covenant. In view of the Contractor's access to Confidential
Information and Trade Secrets of the Company and in consideration of the value
of such property to the Company, during the term of this Agreement and for a
period of two years after termination of this Agreement for any reason, the
Contractor shall not, without the prior written consent of the Company, in any
manner, directly or indirectly:
A. Contact
or solicit the trade or patronage of any of the customers of the Company for
itself or any other person or entity with respect to any products that are
designed
for or
may be used to measure a person’s range of motion. The term "customers" shall for purposes
hereof be deemed to include, without limitation, the officers, directors,
agents, employees, parents, subsidiaries and affiliates of such customers, and
all persons or organizations with whom the Company has done business, within the
twelve (12) month period preceding the termination of this
Agreement. The terms of this subparagraph shall not prohibit the
Contractor from selling the IM, or other products that are not similar to the
Products, to the customers.
B. Solicit,
induce or attempt to induce any employee of the Company to leave the Company's
employ to become connected in any way with, or employ or utilize any such
employee in, any other business engaged in the sale or distribution of products
similar to the Company's Products.
12. Remedies.
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A.
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(i)
Each party agrees that the covenants contained in Sections 10 and 11
hereof are necessary to protect the interests of the other in Confidential
Information and Trade Secrets, and to protect and maintain the customer
relationships and other legitimate, proprietary interests of the Company,
both actual and potential, which the Contractor would not have had access
to or any involvement in but for the independent contractor relationship
with the Company. Each party agrees that in the event of an
actual or threatened breach by the other party of any of the covenants set
forth herein, the other party would be irreparably harmed and the full
extent of injury resulting therefrom would be impossible to calculate and
the other party would not have an adequate remedy at law. Accordingly,
each party agrees that temporary and permanent injunctive relief would be
appropriate remedies against such breach, without bond or security;
provided, however, that nothing herein shall be construed as limiting any
other legal or equitable remedies available to the aggrieved
party.
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(ii)
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In
the event that either party must seek legal remedy for a breach as
described in A.(i), the prevailing party shall be entitled to have all
costs and expenses, including without limitation, court costs,
investigation costs, expert witness fees, and attorneys' fees, incurred by
the prevailing party reimbursed.
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B. Notwithstanding
any dispute involving application of the injunctive relief as provided in
Section 11 hereof, any other dispute or claim arising out of any provision of
this Agreement, whether based on statute, regulation, contract, tort or
otherwise, shall be submitted to arbitration before a single arbitrator pursuant
to the commercial arbitration rules of the American Arbitration
Association. Any such arbitration shall be conducted in Princeton,
New Jersey. An arbitration award rendered pursuant to this Section 12 shall be
final and binding on the parties and may be submitted to any court of competent
jurisdiction for entry of a judgment thereon, in accordance with the Uniform
Arbitration Act. The parties agree that punitive damages may not be
awarded in an arbitration proceeding under this Agreement.
13. No
Employee Benefits. The Contractor shall not be eligible for
any benefits payable to employees of the Company.
14. Assignment. This
Agreement may not be assigned by either party in whole or in part without the
prior written consent of the other party hereto, except as specifically provided
herein. This Agreement may be assigned by the Company, in its sole discretion,
to any subsidiary or affiliate of the Company or to any successor of the Company
either by merger or acquisition of substantially all of the assets or the
business of the Company as a going concern.
15. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New Jersey.
16. Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal or personal
representatives, successors and assigns.
17. Notice. All
notices required hereunder shall be in writing and shall be deemed to have been
given if delivered personally or by United States certified or registered mail,
postage prepaid, return receipt requested, or by a recognized overnight delivery
service to the parties at their respective addresses set forth below their
signatures to this Agreement, or to such other address as shall be specified in
writing by either party to the other in like fashion.
18. Entire
Agreement. This Agreement sets forth and constitutes the
entire agreement and understanding of the parties with respect to the subject
matter hereof. This Agreement supersedes any and all prior
agreements, negotiations, correspondence, undertakings, promises, covenants,
arrangements, communications, representations and warranties, whether oral or
written.
19. Indemnity. The
Company for itself and its successors and assigns hereby indemnifies the
Contractor and agrees to and shall hold the Contractor harmless of, from and
against, and agrees to and shall pay on demand, any and all claims, costs,
damages, demands, expenses, payments, charges, fees, executions, suits, sums of
money, unreimbursed tariffs, repayments, penalties, reimbursements and judgments
whatsoever, including without limitation court costs and attorneys' fees,
whether known or unknown or suspected or unsuspected, for, upon or by reason of
any manner, cause or thing whatsoever in any way or to any extent directly or
indirectly arising from or out of, related to, as a consequence of, or connected
with the proper use of the Products by the customers.
20. Severability. If
any provision of this Agreement shall be declared by any court of competent
jurisdiction to be illegal, void or unenforceable, the other provisions hereof
shall not be affected thereby but shall remain in full force and
effect. Furthermore, if any of the restrictions regarding
post-termination activities is found to be unreasonable or invalid, the court
before which the matter is pending shall enforce the restriction to the maximum
extent it deems to be valid and enforceable.
21. Waiver. Failure
of either party hereto to insist upon strict compliance with any of the terms,
covenants and conditions hereof shall not be deemed a waiver or relinquishment
of such terms, covenants and conditions or of any similar right or power
hereunder at any subsequent time.
22. Amendment. This
Agreement may not be amended except by a writing executed by both parties
hereto.
23. Construction. Whenever
applicable in this Agreement, the singular and the plural, and the masculine,
feminine and neuter shall be freely interchangeable, as the context
requires. The Section headings or titles shall not in any way control
the construction of the language herein, such headings or titles having been
inserted solely for the purpose of simplified reference. Words such
as "herein", "hereof", "hereinafter", "hereby", and "hereinabove" when used in
this Agreement refer to this Agreement as a whole, unless otherwise required by
the context. The Recitals constitute an integral part of this
Agreement and are fully incorporated herein. All Section and
subsection references set forth herein refer to the corresponding Sections and
subsections of this Agreement.
24. Venue. All
actions or proceedings in any way, manner or respect arising out of or from or
related to this Agreement shall be litigated only in courts having situs within
the State of New Jersey, which courts shall have exclusive jurisdiction over all
such actions or proceedings, and all parties and their transferees hereby
consent and submit to the jurisdiction of any local, state or federal court
located within said city and state, and all parties and their transferees hereby
waive any and all rights they may have or obtain to transfer or change the venue
of any litigation brought by any party hereto against any other party
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day, month and year first above written.
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Performance
Health Technologies, Inc.
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| By: /s/ | ||
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Interactive
Metronome, Inc.
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| By: /s/ | ||
| Dated: | ||
