INVO BioScience, Inc. Exclusive Distribution Agreement
Exhibit
10.06
THIS
AGREEMENT is made this 17 day of January
, 2009, between INVO BioScience Inc. (INVO), a Nevada
Corporation having a place of business at 000 Xxxxxxxx Xxxxxx, Xxxxx 000X,
Xxxxxxx, XX 00000 XXX, and Centro de Reproduccion Humana de Lima, having a place
of business at Peru (“Distributor”).
INVO is
the global manufacturer of INVOcell® Medical Devices
Distributor
desires to obtain from INVO and INVO desires to grant to Distributor, on the
terms and conditions set forth below, the right to import, sell and distribute
the Products (as hereinafter defined) in the Territory (as hereinafter
defined).
INVO is
entering into this Agreement based on assurances that Distributor will devote
its best efforts to market and sell the Products in the Territory for its own
account and will otherwise adhere to all the terms and conditions of this
Agreement.
The
parties agree as follows:
1.
GRANT OF DISTRIBUTION
RIGHTS
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A.
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Subject
to all of the terms and conditions of this Agreement (including the
attached Exhibits), INVO hereby grants Distributor an Exclusive Master,
non-transferable distributorship as set forth in Exhibit C
Exclusive Distribution Milestones in the geographical territory described
in Section 2 below (the "Territory") for its Products. The
"Products" are those items which, as of the date of this Agreement, are
attached as Exhibit A - Products, Pricing & Terms, and are outlined
below.
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Products:
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a.
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INVO
branded products only, including:
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i.
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INVOcell®
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ii.
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INVOcell
Block®
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iii.
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Perforated
Diaphragms
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iv.
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Any
other products that INVO, in its sole discretion, agrees to sell to
DISTRIBUTOR during the term hereof, including any non-standard/custom
products, as evidenced by an amendment to this Agreement signed by the
parties;
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1
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v.
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Any
improved or updated versions of the foregoing products or replacements of
discontinued products that are added to this Agreement by an amendment to
this Agreement signed by the
parties
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vi.
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Any
other products actually purchased by distributor from INVO during the term
hereof that might be added to this agreement on a case-by-case
basis;
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The
preceding products will be referred to throughout this Agreement as the
"Products."
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B.
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The
following are expressly excluded as Products under this
Agreement:
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(i)
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Products
the international shipment of which is subject to prohibitions or
penalties imposed by United States laws or regulations;
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(ii)
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Products manufactured by INVO licensees in the Territory, if any; |
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(iii)
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Products
which have been ordered by third parties but have not been delivered
before the commencement of this
Agreement;
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(iv)
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Products
for which exclusive rights in the Territory have been granted to others as
of the date of this Agreement;
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(v)
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Products
for which territorial restrictions apply in a license, distribution or
other agreement through which INVO has acquired or retains the right to
distribute such products;
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C.
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Without
limiting INVO’s other rights, INVO is expressly entitled (i) to sell or
solicit sales to persons located outside the Territory (even if such
persons request delivery into the Territory), (ii) to sell or solicit
sales directly to customers as a result of a multi-facility sales
agreement entered into directly by INVO and its customer, and (iii) to
grant exclusive or non-exclusive manufacturing, distribution and/or
trademark licenses or agreements covering the Products outside of the
Territory and manufacturing licenses or agreements within the
Territory.
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2.
TERRITORY
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A.
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The
"Territory" is the entire geographic territory of as defined in Exhibit B.
Distributor is appointed Distributor only for the Territory and will not
distribute or sell any Products to any parties located outside the
Territory. Distributor will not distribute or sell Products in
the Territory to any person or entity which Distributor knows or should
know will distribute or sell Products outside the
Territory. Distributor will promptly notify INVO of all sales
requests received from potential customers outside the Territory for
products, including the Products, which are to be sold outside the
Territory. INVO reserves the right to distribute, whether
directly or indirectly, any and all Products worldwide without restriction
outside of the Distributors defined territory to any other entity,
including without limitation to other distributors, dealers and original
equipment manufacturers.
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3.
TERM OF AGREEMENT AND EARLY
TERMINATION
A. This
Agreement will begin on commencement date above and will continue
for _five (5) years until January,
17, 2014. Within ninety (90) days of the anniversary of
this Agreement, INVO and Distributor will review Distributor's sales and payment
performance and other compliance with the terms of this Agreement during the
prior Contract Year (as defined below). Both parties can decided to
extended this agreement for an additional period of not greater than one
year. For the purposes of this Agreement, "Contract Year" means a
twelve-month period beginning on the anniversary date of this
Agreement.
B. Early
Termination. Notwithstanding any other provisions of this
Agreement, this Agreement may be terminated before its normal expiration date
under the following circumstances:
1. Either
party has the right to terminate this Agreement at any time by a written notice
to the other party given no less than ninety (90) days in advance of the
intended date of termination.
2. If
either party defaults in the performance of any of its obligations under this
Agreement, the other party may give written notice to the defaulting party
specifying the nature and the extent of the default and demanding a cure to the
default, and the defaulting party will then have thirty (30) days to cure each
default. If the default is not cured within thirty (30) days of the
date of notice, then the aggrieved party may by written notice terminate this
Agreement effective immediately upon the defaulting party's receipt of the
notice.
3. If
either party becomes bankrupt or insolvent, or makes an assignment for the
benefit of its creditors, or has a receiver appointed for it or for any of its
properties, the other party will have the right to terminate this Agreement
effective immediately upon the date of written notice to the other
party.
4. INVO
will have the right to terminate this Agreement immediately in the event of a
merger, consolidation, or change of control, directly or indirectly, of
Distributor or a transfer by, or agreement to transfer by, Distributor of
substantially all of its business or assets.
5. INVO
will have the right to terminate this Agreement immediately if INVO believes in
good faith that Distributor has defaulted in the performance of any of its
obligations under Article 6, 10 or 11 of this Agreement. Nevertheless,
INVO may give written notice to the distributor specifying the
default and demanding a cure to the default, and the defaulting party will then
have thirty (30) days to cure each default. If the default is not
cured within thirty (30) days of the date of notice, then the aggrieved party
may by written notice terminate this Agreement effective immediately upon the
defaulting party's receipt of the notice.
6. INVO will
have the right to terminate this Agreement immediately upon written notice to
Distributor in the event that any other agreement existing between INVO (or its
affiliates) and Distributor (or its affiliates) terminates for cause during the
term of this Agreement.
7. If the government or Peruvian
authority by any reason forbids the commercialization of the
product.
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C. Obligations Upon
Termination
1. In
the event of the termination of this Agreement by INVO pursuant to Sections
3.B.2. or 3.B.5., INVO will have the right to withhold payment of any amounts
owed by INVO under the Agreement as a set-off against any damages, including
fines and attorneys' fees, which INVO incurs as a result of Distributor's
default.
2. Immediately
upon the termination or expiration of this Agreement, Distributor's appointment
will terminate and all of Distributor's rights under the Agreement will
terminate, including the right to any additional payments, severance or
termination fees, or other termination claims, except that Distributor will have
the non-exclusive right to sell its remaining inventory of the Products, subject
to the terms and conditions of this Agreement. Following any expiration or
termination of this Agreement, if requested in writing by INVO at its sole
option, Distributor will within 30 days of request return all unsold quantities
of Products in its inventory. INVO will refund Distributor within 30 days of
receipt of such returned inventory the purchase price paid for such Products
which exceeds all amounts due INVO under this Agreement or otherwise, provided
that such Products are in salable condition.
3. The
termination or expiration of this Agreement will operate as a cancellation, as
of the date of the termination, of all orders which have not been shipped by
INVO to Distributor and, thereafter, INVO will not be obligated to fill such
orders. Distributor will be unconditionally obligated to take and pay
for all Products ordered and shipped prior to delivery of notice of
termination. Within thirty (30) days after the date of termination or
expiration of the Agreement, Distributor will pay all outstanding invoices and
deliver to INVO any and all other sums due INVO from Distributor under the
Agreement and will return to INVO all trade secret and confidential information
belonging to INVO, along with any and all sales aids which INVO may have
supplied to Distributor under this Agreement.
4. Upon
the expiration or effective date of termination of this Agreement, Distributor
will immediately remove from its premises and elsewhere all signs and
advertising relating to INVO and the Products and will stop all use of the INVO
Trademarks and all other trademarks and trade names identified with the
Products. Distributor will also ensure that all such use by any
assistant or subsidiary distributors or others claiming rights from Distributor
will also immediately cease and will no longer use, without INVO written
consent, any name, title, or expression in connection with any business in which
Distributor is engaged which, in the judgment of INVO, so nearly resembles any
trademark or trade name, or part thereof, owned by INVO, including the INVO
Trademarks, as to be likely to lead to confusion or uncertainty on the part of
the public.
Nevertheless,
the DISTRIBUTOR would have the right to sell all the products already bought
after the termination of this agreement.
5. It
is understood by the parties hereto that in the event of the termination of this
Agreement or its expiration, INVO shall have no obligation whatsoever to
reimburse or otherwise compensate Distributor, in whole or in part, for the
capital or labor investment undertaken in connection with the storage or
distribution of the Products, including without limitation its investment in
personal or real property or any improvements thereto, any personnel employed by
Distributor engaged in the handling, storage or distribution of the Products,
for advertising, promotion or marketing efforts undertaken in connection with
the Products, or to compensate or indemnify Distributor in any other way
whatsoever, including without limitation on account of the loss of prospective
profits on anticipated sales or commitments in connection with the business or
goodwill of Distributor. Distributor acknowledges that (i) Distributor has no
expectation and has received no assurances that its business relationship with
INVO will continue beyond the stated term of this Agreement or
its termination in accordance with the terms of this Agreement, or
that any investment by Distributor in the promotion of Products will be
recovered or recouped by virtue of this Agreement; and (ii) Distributor will not
have or acquire any vested, proprietary or other right in the promotion of
Products or in any goodwill created by its efforts under this
Agreement. THE PARTIES ACKNOWLEDGE THAT THIS SECTION HAS BEEN
INCLUDED AS A MATERIAL INDUCEMENT FOR INVO TO ENTER INTO THIS AGREEMENT AND THAT
INVO WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS OF
LIABILITY OUTLINED IN THIS ARTICLE.
6. The
expiration or termination of this Agreement will not affect any then existing
obligation of either party with respect to moneys already owed or to
Confidential Information (as defined below).
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4.
TERMS AND CONDITIONS OF SALE TO
DISTRIBUTOR
A. Purchase
Orders. Distributor will order Products from INVO and INVO
will sell Products to Distributor pursuant to the terms and conditions in this
agreement. In the event of a conflict between the terms of
Distributor's purchase order and the terms of this Agreement, the terms of this
Agreement will control. Each confirmed purchase order will be an
agreement between Distributor and INVO for the delivery of Products in
accordance with this Agreement. INVO may amend its terms and
conditions of sale on notice to Distributor, and such amended terms and
conditions will apply to all future orders placed by Distributor.
B. Price. The price
payable by Distributor for Products purchased from INVO will be the Distributor
Price outlined in Exhibit A. The Distributor Price may be increased or decreased
by INVO. The effective date of such price change will be upon ninety
(90) days notice from INVO.. The Distributor Price does
not include export packing charges, handling, shipping and insurance charges,
inspection fees, consular fees, import or export duties, taxes, and levies
(including but not limited to, value added, property, sales, use, or similar
taxes), whether imposed by the United States or any other foreign, state or
local government. The payment of the full amount of all such fees,
charges or taxes will be the responsibility of the Distributor. If
INVO is required to collect or pay any such fees, charges or taxes, the amounts
so paid or collected will be reimbursed by Distributor. Distributor
will provide INVO with appropriate resale certificate numbers and other
documentation satisfactory to the applicable taxing authorities to substantiate
any claim of exemption from any such fees, charges or taxes.
C. Payment. An open
terms credit limit may be established by INVO based on financial documentation
submitted by the Distributor. Terms of payment will be outlined in
Exhibit A. Payment for all purchase orders above the established
credit limit will be paid by confirmed, irrevocable letter of credit unless
otherwise agreed by the parties. All payments will be made in United
States dollars. Failure to make any payment when due will be deemed a material
breach of this Agreement, and will entitle INVO to interest of overdue payments
at the rate of 1.5% (one and one half percent) per month.
D. INVO Remedies. In
addition to any other legal or equitable remedies INVO may have, INVO reserves
the right to refuse to accept or to cancel any purchase orders placed by
Distributor and accepted by INVO, or to refuse or delay shipment, if Distributor
(i) fails to make any payment as provided for in this Agreement or a INVO
invoice, (ii) fails to meet reasonable credit or financial requirements
established by INVO, including any limitations on allowable credit, or (iii)
otherwise fails to comply with the terms and conditions of this
Agreement.
E. Risk of Loss and Title to
Products. Risk of loss or damage to the Products will pass to
Distributor at INVO loading facility and INVO will have no further
responsibility for any damages or losses to the Products. Distributor
must obtain insurance from an insurance company satisfactory to INVO covering
the Products in the amount equal to the purchase order price. Title
to the Products will pass to Distributor when Products are loaded at INVO
facility, unless otherwise designated by INVO.
F. Discontinued
Distribution. INVO reserves the right to discontinue the
distribution of any Products at any time, and to cancel any orders for
discontinued Products without liability of any kind to the Distributor or to any
other person by a written notice to the other party given no less than ninety
(90) days in advance of the intended date of discontinue. No
cancellation, refusal or delay will be considered to be a termination or breach
of this Agreement by INVO.
G. Changes to
Products. It is understood that the basic specifications of
any Product may be modified. INVO will notify immediately Distributor of
significant changes in specifications that will alter the use or handling of the
Product.
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5.
GENERAL COMMERCIAL
CONDITIONS
A. Sales Promotion, Service and
Assistance. Distributor will, at its own expense, use its best
efforts to introduce, promote the sale of (including, without limitation, visits
to existing and potential customers and the use of advertising, sales bulletins,
product displays, and exhibits), fill the demand for, and service the Products
within the Territory, deal promptly with all requests for service, and assist
purchasers of the Products in the satisfactory use of the
Products. Distributor should provide all appropriate information
regarding the Products to existing and potential customers in the Territory and
will promptly reply to all requests for information, as well as to all
correspondence or purchase orders from customers. INVO may send its
own representatives to visit and advise customers in the Territory, but will
notify Distributor in advance of such visits. FOR THE AVOIDANCE OF DOUBT BOTH
PARTIES HEREBY RECOGNIZE THAT IT IS CRUCIAL THAT THE DISTRIBUTOR ACTS AS A FULLY
FLEDGED DISTRIBUTOR PURSUANT TO THE TERMS HEREOF AND NOT SIMPLY A SALES
AGENT.
B. Sales
Structure. Distributor will, at its own expense, set up and
consistently maintain adequate facilities for stocking the
Products. Distributor will employ a trained and qualified sales
organization which must be adequate to cover the potential market for Products
in the Territory. Distributor's sales people and clinical trainers
will be trained by INVO, in training courses scheduled from time to time by
INVO. These employees of the Distributor will be the Distributor’s
trainers who will be charged with properly training the rest of the
Distributor’s organization to maintain the highest level of service to the
customer. Distributor will pay any costs of travel, room and board associated
with the training.
C. Inventory. Distributor
will maintain an adequate inventory of Products (and accessories) at all
times. An "adequate inventory" is defined as an inventory that will
allow Distributor to promptly and efficiently supply customers in the
Territory.
D. Safety, Health and Other
Regulations. Distributor will keep INVO currently informed, in
writing, of all governmental and/or technical regulations that may apply to the
Products in the Territory. INVO will determine whether any of the
Products will be modified in order to conform to any such regulations, but INVO
will not be required to modify any of the Products.
E. Resale
Prices. Distributor is free to set its resale
prices. All resale prices will be outlined in a current price list
for the Products, and that price list will be consistently maintained by
Distributor.
F. Regulatory Approvals; Compliance with
Law.
1. INVO
represents and warrants that the INVOcell® Product is approved in European Union
(EU) and Canada and has received ISO 12485 certification and the CE
xxxx.
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2.
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Distributor,
at its own expense, will obtain all necessary permits and licenses for the
importation of the Products into the Territory and Distributor is
responsible for obtaining all necessary regulatory approvals and complying
with local laws regarding the distribution, sale or use of the Products
within the Territory. INVO will cooperate with the Distributor
in obtaining any necessary
approvals.
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G. Accurate Records; Reports of
Operation. Distributor agrees to maintain accurate and
complete books, records and accounts of transactions under this
Agreement. Distributor will provide INVO with its financial reports,
reports of inventory levels, actual and forecast sales, market trends for the
sale of Products, and such other information as INVO reasonably
requests.
1 The product is classified
as a class 2 Medical Device and as such proper record keeping must be maintained
by the Distributor by Lot Number to the customer and end user.
2
The Distributor must instruct its customer of their responsibility to maintain
proper lot tracking records of each INVOcell® used in a procedure.
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H. No Repackaging. All
shipments of the Products purchased by Distributor will be marketed by
Distributor in their original configuration including the original labels
provided by INVO. Components should not be mixed, repackaged, sold
separately, or offered in any form other than that provided by
INVO. The only exception to this is if local language operating
instructions are required by custom or law.
I. Advertising.
1. Subject
to Section 5.I.2 and Article 11, all advertising by Distributor will follow
general advertising statements and specific instruction as to the use of INVO
Trademarks (as hereinafter defined) provided by INVO. The INVO name and the INVO
Trademarks will be featured in all advertising and promotion by Distributor
targeted to the Territory with respect to the Products unless otherwise
previously agreed upon in writing by INVO. INVO may request
Distributor to alter its advertising, and Distributor will comply with all such
requests at its sole expense. INVO will provide approved copy of
recommended materials bearing the INVO brand for use by the Distributor while
this agreement is in effect.
2. Distributor
agrees, upon request, to promptly discontinue any advertising or practice which
INVO reasonably determines might mislead or deceive the public or which might be
detrimental to the good name, trademarks, trade names, goodwill or reputation of
INVO or the Products. Distributor may not advertise the
Products outside the Territory. Any Product which Distributor
advertises or otherwise represents to customers as being made by or obtained
from INVO must in fact be so made or obtained.
J. Commercial
Practices. The Distributor will at all times respect the laws
and rules of commerce and fair competition in the Territory.
K. Inspection. Upon
request, INVO and its representatives will have reasonable access, during normal
working hours, to Distributor's place(s) of business and inventory stock to
review Distributor's compliance with this Agreement.
L. Cooperation with
Recall. If INVO, or one of INVO suppliers, institutes a recall
or notification campaign, or similar program, with respect to any one of the
Products, Distributor will assist INVO in any way necessary to comply with the
terms and goals of the campaign or program.
M. Limited
Warranty. INVO agrees to warrant the Products to Distributor
in accordance with its limited warranty in effect at the time of shipment
.. INVO’s limited warranty may be changed by INVO at any time in its
sole discretion upon thirty (30) days' written notice to
Distributor. INVO’s limited warranty and other remedies provided
under this Agreement are assignable to Distributor's customers only when
required under the law of the Territory. In the event that
Distributor extends to any customer a warranty which differs from INVO limited
warranty, Distributor will be exclusively responsible for such extended
warranty, will support all consequences regarding the warranty and will hold
INVO harmless with regard to any warranty related costs. INVO WILL HAVE NO
LIABILITY TO DISTRIBUTOR, DISTRIBUTOR'S CUSTOMERS OR OTHER THIRD PARTIES FOR
CLAIMS OR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES,
OTHER THAN AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. No employee, agent or
representative of INVO has the authority to bind INVO to any oral representation
or warranty concerning any Product sold. Any oral representation or
warranty made prior to the purchase of any Product and not set forth in writing
and signed by a duly authorized officer of INVO shall not be enforceable by
Distributor. INVO makes no warranty and shall have no obligation with respect to
expendable or consumable parts and supplies or with respect to damage caused by
or resulting from accident, misuse, neglect or unauthorized installation,
alterations or repairs to the Products.
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INVO
warrants to the original end user only for 60 days from such end user’s purchase
date of the Product(s), if used as authorized in accordance with INVO
specifications, will not have significant defects in materials or workmanship
that make the Products unusable. INVO makes no warranty or representation that
the Products will meet any end user’s specific requirements, that the operation
of the Products will be secure or error free, or that all defects in the
Products will be corrected. INVO makes no warranty, implied or
otherwise, regarding the performance or reliability of any third party products
such as culture medium. Unintended use, not following instructions
for use (IFU), modification or repair of the Products voids all
warranties. INVO
EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING THE WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR
PURPOSE.
N. Warranty Return Procedures.
Distributor shall be responsible for and shall coordinate all communication with
its resellers and end users concerning warranty claims, maintenance and support
requests, including without limitation obtaining proof of purchase from the end
user. Distributor shall comply with INVO’s then current Product return
procedure, which INVO may change from time to time. This procedure is
called Return Material Authorization (RMA) process. At its option, INVO shall
repair or replace defective Product(s) that are covered by INVO’s limited
warranty and returned in accordance with INVO’s RMA procedure by using new
materials or provide a refund of the price paid to INVO for such
Product. The Distributor shall pay for all shipping charges,
insurance, taxes, duties, and others charges for all RMA shipments. INVO shall
pay freight charges on shipments, duties, customs, taxes and other charges on
such shipments to Distributor of the repaired or replaced Product(s) under
warranty; however, Distributor shall pay all duties, customs, taxes and other
charges on such shipments. Products that INVO determines are not
defective, not under warranty or not returned in compliance with INVO’s return
(RMA) procedure shall be returned to Distributor and Distributor shall pay all
freight, insurance, duty, taxes and others charges related to these
Products. It is the Distributor’s responsibility to manage its
inventory of INVO Products. The products have a three (3) year shelf life and
cannot be returned if they exceed the expiration date (greater than three years
old).
O.
Indemnification. Distributor
will defend, indemnify and hold harmless INVO, its officers, directors, their
successors, representatives and assigns, and INVO affiliated companies against
any and all liability, claims, causes of action, suits, damages and expenses
(including reasonable attorneys' fees and expenses), which they, or any of them
are or become liable for, or may incur, or be compelled to pay by reason of any
acts, whether of omission or commission, that may be committed or suffered by
Distributor, any of its servants, agents or employees or any other persons who
are connected with the distribution of the Products in connection with the
performance of this Agreement. Distributor releases INVO and its
affiliated companies from any direct, collateral, incidental or consequential
damages, whether for personal injury or property damage, in connection with
Distributor's or such other persons' sale or other disposal of any Product,
except for such damages as are covered by insurance. INVO will not be
liable to Distributor for any claim arising from or based upon the combination
or use of any Product with other products not supplied by INVO, or arising from
any alteration or modification by Distributor or others of
Products. The provisions of this Section will survive the termination
of this Agreement.
P.
Status of the
Parties. Distributor, its agents and employees are in no way the
sales representatives or agents of INVO for any purpose whatsoever and have no
right or authority to represent themselves or act as such or in any way to bind
INVO to any obligation to a third party, and they will not assume or create in
writing or otherwise any obligation of any kind, express or implied, in the name
of or on behalf of INVO, unless specifically authorized to do so in writing by
INVO and in accordance with the conditions specified by INVO
Q.
Distributor an Independent
Contractor. The Distributor warrants and agrees that it will be at
all times an independent contractor, and that it will do business at its own
risk and for its own profit and not as a partner, joint venture, agent or
employee of INVO or of any of its affiliated companies. Distributor
and its agents and employees will not be entitled to any benefits, privileges or
compensation given or extended by INVO to INVO’s employees. All sales
personnel and other agents and employees of Distributor will be deemed to be
Distributor's agents and employees exclusively, and their entire management,
direction and control will be the responsibility of
Distributor. Distributor will be responsible for any and all
expenses, charges, fees, and taxes that may be levied or imposed by any
authority within the Territory or elsewhere, upon Distributor by reason of its
activities under this Agreement.
R.
Limitation of
Actions. Any cause of action for breach of warranty must be brought by
Distributor, if at all, within ninety (90) days from the date the cause of
action accrued. Additionally any discrepancy in Distributor's pricing
or other charges shall be deemed waived by Distributor unless Customer notifies
Distributor thereof, in writing, within sixty (60) days from the date of the
invoice on which such disputed transaction is reflected.
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6.
REPRESENTATIONS AND WARRANTIES
OF DISTRIBUTOR
Distributor
specifically represents, warrants and agrees to the following and agrees to
indemnify, defend and hold INVO and its affiliated companies harmless from the
results of any failure on its part to comply with the following:
A. Distributor
will comply in all respects with all United States and foreign laws, regulations
and standards applicable to its activities under this Agreement as such laws,
regulations and standards may be amended from time to time ("Applicable Law"),
and will conduct its activities in accordance with professional business
practices of honesty and integrity. In that connection, the
Distributor represents and agrees:
1. that
it is familiar with the provisions of United States law regarding international
transactions, including, without limitation, the U.S. Foreign Corrupt Practices
Act and that it will comply in all respects and at all relevant times with
Applicable Law
2. that
it will from time to time confirm to INVO, upon written request by INVO, that it
is in compliance with Applicable Law, the Code of Conduct, and any other INVO
policy relating to the transaction of business in the Territory that has been
communicated to the Distributor; and
3. that
none of its partners, owners, principals, officers or staff members are
officials, officers or representatives of any government or political party or a
candidate for political office, and no part of the fees it is to receive under
the terms of this Agreement will be used for any purpose which would violate
Applicable Law.
B. Distributor
represents and warrants that it has full power and authority to enter into and
perform its obligations under this Agreement, and that its performance will not
conflict with or constitute a breach of or default under any existing contract,
promise or obligation of Distributor.
7.
RESPONSIBILITIES OF
INVO
A. INVO
will furnish to Distributor current information on Products, any price or
information changes concerning the Products and will inform Distributor of all
changes to the Distributor Price outlined in Exhibit A with prior notice of 90
days.
B. INVO
will cooperate with Distributor in promoting the sale of the Products and will
supply Distributor with product bulletins, price lists, advertising material,
regularly published literature and other sales promotion aids, in the English
language, of a type and in such amounts as INVO believes will enhance the
marketability of the Products. The shipping costs, duties, taxes, and
other applicable expenses of such materials will be paid by
Distributor. Exceptionally large quantities of any publication
requested by Distributor will be billed to Distributor at the reprint
price. INVO will furnish to Distributor, upon request, and free of
charge, photographs, retouchings, negatives or engravings from INVO available
stock, but Distributor will pay for all literature or advertising in which it
uses any such materials.
C. INVO
will be responsible for obtaining any necessary licenses for the export of the
Products from the United States.
D. INVO
will furnish to the Distributor such technical and clinical advice, assistance
and support as INVO believes is reasonable to enable the Distributor to sell the
Products, but INVO may xxxx the Distributor for outside costs for such material
(e.g., Instructions for Use manuals - IFU). If at any time
other than as previously scheduled by INVO, it is necessary for an INVO employee
or agent to travel to Distributor's facility in connection with such sales,
clinical or technical training, Distributor will reimburse INVO for all
reasonable costs incurred in connection with such visit.
9
8.
MINIMUM PURCHASE
AMOUNTS
During
the term of this Agreement, Distributor agrees to purchase from INVO a minimum
of Product, outlined in Exhibit C Milestones. Distributor expressly acknowledges
that such commitment is reasonable and a conservative estimate of the amount of
Product it can resell within the Territory. The minimum purchase
quantity may be revised by the parties from time to time during the term of this
Agreement, but under no circumstances will the quantities for any year be less
than the quantities for the immediately preceding year.
9.
DISTRIBUTION OF OTHER
PRODUCTS
A. Distributor
will not, without INVO prior written consent, during the term of this Agreement,
manufacture, aid in the manufacture, export, sell, distribute or otherwise
handle competing products in the Territory or directly or indirectly facilitate
or promote the distribution or sale of any competing products or hold or
acquire, directly or indirectly, any participation in any organization or entity
selling, distributing or otherwise handling competing products or manufacture or
reproduce, in whole or in part, any Products, unless otherwise agreed to in
writing prior to the execution of this agreement. For the purposes
hereof, "competing products" means any products similar to any of the Products
manufactured by INVO or which can be put to identical or similar uses or which
might compete with or hinder the sale of such
Products. Non-compliance by Distributor with the provisions of this
Section 9 during the term of this Agreement will constitute an incurable default
under this Agreement.
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B.
|
If this Section 10 or any part of it is held by a court or arbitration
panel, administrative body or governmental agency of competent
jurisdiction to be invalid, illegal or unenforceable for any reason, it is
agreed that within such jurisdiction the restrictions set forth in Section
9 will automatically be considered modified to embrace the greatest
possible time and area of restriction then permitted under applicable law,
and such invalidity, illegality or unenforceability will not impair the
enforceability of these restrictions as so modified nor in any manner
otherwise affect the remaining provisions of this
Agreement.
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10. TECHNICAL INFORMATION;
CONFIDENTIALITY
A. INVO
will furnish to Distributor technical information to assist Distributor in the
sale and service of the Products. Distributor will reimburse INVO for
any costs incurred by INVO in obtaining such information from third
parties. Distributor acknowledges that all technical and commercial
information and know-how (collectively, "Confidential Information") furnished by
INVO and its affiliated companies to Distributor during the term of this
Agreement is proprietary and is of a highly confidential and secret
nature.
B. All
Confidential Information is given and received in strict confidence and is to be
used by Distributor solely for the purpose of carrying out this
Agreement. Distributor will keep in strict confidence the
Confidential Information and will not, for any reason whatsoever, reveal,
disclose, sell or transfer any part of such Confidential Information, directly
or indirectly, to its own employees or agents or to any third party except as
permitted by the terms of this Agreement.
C. In
the performance of its obligations under this Section, Distributor will at its
own cost take all precautions and steps which may be reasonably requested in
order to protect Confidential Information (including the bringing of legal
action in order to ensure that others respect this undertaking of
confidentiality). Nothing in this Agreement should be interpreted as
prohibiting INVO from bringing such legal actions at its own expense within or
outside the Territory as INVO may choose.
D. Distributor
will have the right to disclose Confidential Information to those of
Distributor's employees and its subsidiary distributors who require the
information and Distributor agrees to exercise a high degree of care in the
selection of its employees and subsidiary dealers to whom Confidential
Information will be disclosed, and to bind them to obligations of
confidentiality at least as stringent as those provided for in this Agreement.
Distributor will indemnify and hold harmless INVO for the consequences of any
unauthorized disclosure or misuse of such Confidential Information.
10
INVO
BioScience, Inc.
Exclusive
Distribution Agreement
E. Distributor's
obligations set forth in this Section will survive and remain in effect even
after the expiration or the termination of the present Agreement.
F. It
is expressly agreed that the obligations of Distributor to maintain the
confidentiality of Confidential Information under this Section will not apply to
any information which:
(a) was
in the public domain at the time of disclosure to Distributor;
(b) was
in the possession of Distributor without binder of secrecy prior to disclosure
to it; or
(c) though
confidential at the time of disclosure, subsequently becomes part of the public
domain through no fault of the Distributor.
G. Distributor
will immediately inform INVO if it becomes aware of any violations of INVO
Confidential Information rights within the Territory. If INVO, after
consultation with Distributor but in its entire discretion, decides to institute
a legal action in its own name, it may do so at its own
expense. Distributor may participate in such legal action at its own
cost. INVO will have the final decision with regard to the conduct of
all such legal actions and will retain all settlements, recoveries and judgments
arising from such actions, after reimbursement to Distributor for out-of-pocket
expenses, if any, incurred by Distributor in connection with legal action taken
at INVO specific request. If Distributor decides not to participate
in such legal action, it will cooperate with INVO and assign to INVO any claims
it may have, without compensation.
H.
Distributor's obligations upon the expiration or termination of the Agreement is
to return all confidential information and documents.
11. TRADEMARKS
A. Distributor
acknowledges that the trademarks, trade names and logos used by INVO in
promoting its products and services (the "INVO Trademarks") are the exclusive
property of INVO or its affiliated companies. Distributor undertakes
throughout the term of this Agreement to display the INVO Trademarks in
publications, signs and displays and in other suitable advertising and sales
promotion media in association with the names and/or illustrations of the
Products which are manufactured by INVO or its affiliated companies (the "INVO
Products") or such Products themselves only in a manner that is in compliance
with such rules and regulations regarding their use as INVO provides to the
Distributor. Neither the Distributor nor any assistant or subsidiary
dealer of Distributor will acquire any right or interest whatsoever, as a result
of this Agreement, in any patents, the INVO Trademarks or other trademarks,
trade names, logos owned by INVO or its affiliated companies or other industrial
property rights of INVO or its affiliated companies or will use same in any
manner except as explicitly authorized by INVO.
B. If
any case of unfair competition or infringement by third parties in the Territory
of the INVO Trademarks or other trade names, trademarks or other industrial
property rights of INVO or its affiliated companies or of the manufacturers of
Products which are not INVO Products comes to the knowledge of Distributor, the
latter will inform INVO immediately. INVO will, at its own
discretion, decide whether it will prosecute any such case of which it is so
notified and in what manner it will prosecute. At the request of
INVO, Distributor will assist INVO to the best of its ability.
C. Distributor
will not use directly or indirectly, in whole or in part, any of the INVO
Trademarks or any other trademark or trade name that is now or may hereafter be
owned by INVO or its affiliated companies as part of Distributor's corporate or
business name, or in any way in connection with Distributor's business, except
to such extent and in such manner as INVO may specifically consent to
in writing.
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C.
|
Distributor
acknowledges that any breach of its obligations regarding INVO
Confidential Information will cause INVO irreparable injury for which
there are no adequate remedies at law, and therefore INVO will be entitled
to equitable relief in addition to all other remedies provided by this
Agreement or available at law.
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11
INVO
BioScience, Inc.
Exclusive
Distribution Agreement
12. NOTICES
Any
notice regarding this Agreement should be in writing and should be sent by fax
or by registered or certified mail, postage prepaid, to the party notified,
addressed to the party at its address or fax number outlined below, or any
updated address or fax number that the party may have submitted in writing to
the other party:
If to INVO
at: INVO
BioScience, Inc.
Attn: Chief Financial
Officer
Fax: (000)
000-0000
Suite 421E
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
with a copy to:
If to Distributor
at: _________________________
_________________________
_________________________
_________________________
13. ENTIRE AGREEMENT;
MODIFICATIONS
This
Agreement and Exhibits attached form the entire Agreement and understanding
between the parties regarding this distributorship relationship. This
Agreement may only be amended by a writing signed by duly authorized
representatives of both parties.
14. FORCE MAJEURE
Neither
party will be liable for any claim regarding a failure to perform under this
Agreement if the failure to perform is due to any cause beyond the party's
reasonable control, including without limitation, acts of God, acts of civil or
military authority, labor disputes, fire, riots, civil commotions, sabotage,
war, embargo, blockade, floods, epidemics, power shortages, or governmental
restrictions.
15. ENGLISH LANGUAGE
TEXT
This
Agreement has been executed in the English language, and any interpretation or
construction of this Agreement should be based on the English
language text.
12
INVO
BioScience, Inc.
Exclusive
Distribution Agreement
16. APPLICABLE LAW
This
Agreement has been entered into in the Commonwealth of Massachusetts and will be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts without giving effect to principles of conflicts of
law. The parties also agree that all sales made by INVO to
Distributor during the term of this Agreement will be made, if made, by the
acceptance by INVO of orders in the Commonwealth of
Massachusetts. This Agreement will not be subject to the United
Nations Convention for the International Sale of Goods. Exclusive jurisdiction
of any disputes under this Agreement will lie in the Commonwealth of
Massachusetts and the Boston District of the Federal courts of the United States
of America.
17. ASSIGNABILITY; SUCCESSORS AND
ASSIGNS
This
Agreement and the rights and obligations of Distributor outlined in this
Agreement are not assignable by Distributor, by operation of law or otherwise,
without the prior written consent of INVO BioScience, Inc. Any
attempted assignment in violation of this Section will be considered
void. INVO will have the right, without notice to Distributor, to
assign all or any part of its rights and obligations under this Agreement, but
only to one of its affiliated companies. It is expressly agreed that
this Agreement will be binding on and will benefit the successors and permitted
assigns of the parties.
18. WAIVER
The
failure of either party at any time to require performance by the other party of
any provision in this Agreement will not affect the full right to require such
performance at a future date, and a waiver of any one breach should not be
considered a waiver of any other breaches.
19. EQUITABLE RELIEF
Distributor
acknowledges that any breach of its obligations regarding INVO Confidential
Information and Trademarks will cause INVO irreparable injury for which there
are no adequate remedies at law, and therefore INVO will be entitled to
equitable relief in addition to all other remedies provided by this Agreement or
available at law.
20. EXHIBITS
Attached
to and are integral parts of this agreement, both parties are to
initial:
___ Exhibit
A: Price List & Terms
___ Exhibit
B: Territory
___ Exhibit
C: Exclusive Distribution Milestones
___ Exhibit
D: _____
___ Exhibit
E: _____
13
INVO
BioScience, Inc.
Exclusive
Distribution Agreement
21. SIGNATURES
AGREED
TO BY:
Centro de
Reproduccion Humana de Lima INVO BioScience,
Inc.
/s/Xxxxxx Xxxxxxx
Xxxx /s/Xxxxx
Files
By: Xxxxxx
Xxxxxxx
Xxxx By: Xxxxx
Files
Title: General
Manager
Title: VP of Government Relations
Date: 1/17/09
Date: 1/17/09
14
INVO
BioScience, Inc.
Exclusive
Distribution Agreement
TERMS
AND CONDITIONS
Exhibit
A
Price
List
(US
dollars)
PRODUCTS
INVOCELL FG-002
$
The
INVOcell device is a three-part assembly enclosed in two separate
packages.
Package 1
contains the inner chamber, the 2nd package contains the top and
bottom
parts of the outer rigid shell.
INVOCELL
Block FG-102 $
The
INVOcell Block is a device that holds the INVOCELL in a stationary
position
allowing
the embryologist to easily rotate the INVOCELL for inspection and
extraction.
INVOCELL Small
Diaphragm FG-205
$
The
INVOcell diaphragm is a specially designed retention device that will
prevent
the
INVOcell from becoming dislodged.
INVOCELL Large
Diaphragm FG-210 $
ADVISORY SERVICES
Clinical
Training $
Sales
Training $
Expert
Consulting $
PAYMENTS
TERMS
50% 30
days in advance of shipment and the balance 15 days after receipt of
product
15
INVO
BioScience, Inc.
Exclusive
Distribution Agreement
TERMS
AND CONDITIONS
Exhibit
B
Exclusive
Territory
COUNTRY
of XXXX
00
INVO
BioScience, Inc.
Exclusive
Distribution Agreement
TERMS
AND CONDITIONS
Exhibit
C
Milestones
As
a requisite to retain territory exclusivity the following milestones must be
adhered too based on a review of the territory and the market
potential.
INVOcells
must be purchased by the following intervals:
INVO
cell
INVO cell
Time
Period Purchases in
Period Cumulative
Total
Initial
Purchase
1st 6
months
12
months
24
months
36
months
48
months
60
months
Forecast
Distributor
is to provide a 12 month rolling forecast updated quarterly, to allow INVO to
ensure it maintains sufficient inventory to meet the Distributors
requirements.
If
the Distributor’s Territory includes multiple counties it will provide the
forecasts by country.
17
