BUSINESS SERVICES AGREEMENT
EXHIBIT
10.13
This
Business Services Agreement is made and entered into effective as of the _____
day of April 2010 (the “Effective Date”), between Modern Medical
Modalities Corporation, a business and information services company incorporated
in New Jersey, with offices in Atlanta, Georgia (“MMMC”) and Best Plastics, LLC
(“BPL”), a plastics manufacturing company organized in New Jersey and operating
in Atlanta, Georgia, and Xxxxxxx Xxxxxx (“Xxxxxx”), the sole owner and Manager
of BPL.
Concurrently
with the execution of this Agreement, BPL has executed and delivered to MMMC a
$700,000 Convertible Promissory Note (“Note”) and a Security Agreement (such
Note and Security Agreement, collectively, the “Loan
Documents”). This Agreement shall remain in effect for 12 months and
will renews automatically unless a 60 days written notice is given by any party,
but may not be terminated by BPL unless and until the date that the Note is paid
in full and all other obligations under the Loan Documents are completed by BPL
and Bohbot.
MMMC and
BPL are desirous to work together in a business collaborative manner by using
MMMC’s business and information services to help improve BPL’s business. As part
of MMMC’s business and information services to BPL, BPL will be provided
management and advisory services, information services that include usage of a
special licensed version of an Information System referred herein as the Modern
Manufacturing Information System (“MMIS”), and other value added services, which
may be listed in an attached addendum that is to be executed and updated from
time to time.
The terms
of the Agreement and consideration made by BPL and MMMC are described above and
in the following paragraphs:
1.0 MMMC BUSINESS
SERVICES.
MMMC is
hereby appointed as the exclusive independent management consultant of BPL to
provide management, accounting services, information systems and related
services, advisory services, hiring and terminating employees, enter into
contractual agreements, sign BPL checks, and other business and general
administrative services that may be needed to effectively manage all BPL day to
day operations. BPL, and Xxxxxxx Xxxxxx, individually, agree to give
MMMC immediate and ongoing access to, and rights to review, all of BPL’s
financial records, and to joint decision making authority with Bohbot for all
financial and operational decisions made, and the requirement of two signatures
(one on behalf of MMMC and one on behalf of BPL) on all transactions related to
bank accounts and pre-approval by MMMC of all expenditures. BPL and Xxxxxxx
Xxxxxx, individually, agree that the MMMC managers working on behalf of BPL,
have no authority or involvement whatsoever with Best Temp, an employment
agency, other than to make payments to Best Temp from BPL for services provided
to BPL.
In
consideration for MMMC’s services under this Agreement, BPL shall pay to MMMC a
services fee equal to:
(i) one
and one-half percent (1.5%) the first $25,000,000 of BPL’s gross revenues earned
during the term of this Agreement, with a minimum fee of $300,000 per calendar
year, and
(ii)
one and one-quarter percent (1.25%) of BPL’s gross revenues earned during the
term of this Agreement for amounts between $25,000,000 and $50,000,000 of BPL’s
gross revenues; and
(iii) one percent (1%) of BPL’s gross revenues earned during the
term of this Agreement for amounts of $50,000,000 of BPL’s gross revenues and
above.
MMMC
shall invoice BPL pursuant to Section 6.0 hereof for prorated amounts of
$300,000. As soon as practicable upon the completion of the initial term of this
Agreement, BPL shall pay to MMMC any additional amount due to MMMC from BPL
pursuant to the service fee calculations above.
2.0 LIMITATION ON LIABILITY,
ETC.
The
parties hereby covenant and agree that MMMC is acting as an independent
contractor for BPL, and is not undertaking any role as a manager, officer or
owner of MMMC pursuant to this Agreement. Further, MMMC and its
officers, directors, employees and independent contractors (collectively,
“Indemnitees”) shall not act as management or affiliates of BPL in performing
MMMC’s services to BPL under this Agreement, and shall not have any liability of
any kind for the operations of BPL or the actions of Bohbot. BPL and
Bohbot each jointly and severally agree to indemnify and hold harmless the
Indemnitees for any liability, cost, expenses, attorneys fees or any other cost
or expenses of any kind, related to the operations of BPL or the actions of
Bohbot. Bohbot hereby covenants and agrees that he shall cause the
Company and its employees to comply with the full intent and purposes of this
Agreement, and he shall not take any action, whether as a Manager, officer, or
owner of BPL that could have the effect of causing BPL to violate the terms of
this Agreement or any of the Loan Documents.
3.0 RIGHT OF
VETO
MMMC
shall have the right of to veto BPL’s decisions to participate in any “Event”
(as such term is defined below; BPL shall immediately notify MMMC in writing of
any intent to participate in any such Event. An “Event” shall mean as any action
outside of BPL’s ordinary course of business, including, but not limited to,
raising capital or debt, any change in control or initiating new ownership
offerings, partnerships, alliances, joint ventures, reorganizations,
acquisitions, mergers, significant business development activities, or any other
similar transactions.
4.0 MMMC SYSTEM
USAGE.
Subject
to and only during the term of this Agreement, MMMC will license to BPL a
non-exclusive, non-transferable or sub-licensable version of the MMIS on an
information system usage basis only at a mutually agreed upon location. Upgrades
to the MMIS may be offered through new software released by MMMC from
time-to-time, and on-demand, custom software upgrades and information system
related consulting services can be obtained through statements of work (“SOW”)
as needed and mutually agreed-to by the parties. The term “MMIS” shall include
any updates wherever such term is used.
4.1 Technical
Support. During the term of this Agreement and provided that no default
shall exist and be continuing under this Agreement or any statement of work
(“SOW”) between the Parties, MMMC shall provide BPL, for the fees set forth in
Section 1.0 above, with updates as part of its normal course of business and
corrections to the MMIS as a result of any documented errors or software
problems discovered as part of the MMIS and agreed to by MMMC. MMMC will also
provide technical support, including answering questions and assisting with
general issues related to the MMIS. Technical support responses shall
be provided as needed and agreed to, up to a maximum of 8 hours per month. Additional hours are
available through mutually agreed upon SOW(s).
4.2 Access. BPL
agrees to give MMMC personnel, and other MMMC designated parties, reasonable
access to its personnel, facilities, hardware, network and related
communications, databases, the MMIS and updates installed on its information
systems to adequately diagnose and correct any problems to the MMMC software
and/or updates and to provide whatever assistance is reasonably requested by
MMMC in its efforts to make changes that may be needed. Failure by BPL to
provide the requisite assistance in a timely manner shall nullify and void BPL’s
obligation to diagnose any issues and to make any necessary corrections or
updates.
4.3
Training. MMMC agrees to provide such training to BPL’s
personnel in connection with the usage of the MMIS as the Parties shall mutually
agree in a SOW or other separate agreement.
4.4
Responsibilities. MMMC shall not be responsible to detect or fix errors
existing or discovered in the data of BPL, and shall not be held responsible for
changes not made by MMMC to the MMIS or derivatives thereof.
5.0 SYSTEM RIGHTS
RESERVED.
The MMIS
usage granted hereby shall in no way prevent or otherwise limit MMMC from
continuing to license, sell or use any related Marks, the MMIS or Documentation
in any manner whatsoever or to prevent MMMC from enhancing or modifying the MMIS
or Documentation in any manner or to any degree.
6.0
BILLING.
Unless
stated otherwise in this Agreement, MMMC shall provide BPL with bi-weekly
invoices, beginning two weeks from the date of this Agreement, for all services
rendered and expenses incurred for the prior period. Such invoices
shall be immediately due and payable after receipt of an invoice from MMMC,
unless the parties agree otherwise to new terms and conditions. The
failure of BPL to pay any invoice when due will entitle MMMC to refrain from
continuing to perform any services for BPL that MMMC may have previously agreed
to perform. The discontinuation of any service by MMMC as a result of
BPL’s failure to pay any reasonable disputed amount to MMMC when due shall not
be deemed a breach of this Agreement by MMMC.
7.0 INTELLECTUAL
PROPERTY.
7.1 MMMC and
MMIS. All rights, title and interest in the MMMC and MMIS and
related Intellectual Property Rights therein, shall remain the exclusive
property of MMMC and its licensors. BPL shall obtain no right, title or interest
in the MMMC and MMIS; except as otherwise provided in this Agreement.
7.2 Custom
Development. All right, title and interest in software
developed by MMMC exclusively for BPL under this Agreement or related applicable
SOW (the “Custom Software Code”) shall be deemed to be a “work made for hire”
and shall be the sole and exclusive property of BPL, including without
limitation, all applicable Intellectual Property Rights thereto and therein.
MMMC hereby irrevocably assigns to all right, title and interest in and to the
clearly identified Custom Software Code and related documentation produced
pursuant to this Agreement or any applicable SOW under this Agreement, including
without limitation, all Intellectual Property Rights thereto and therein. MMMC
specifically intends the foregoing assignment of rights to BPL to include all
such now known or unknown uses, media and forms of exploitation.
8.0 CONFIDENTIAL
INFORMATION.
8.1 Confidential
Information. During the course of this Agreement, each Party
acknowledges and agrees that it may be given access to information that is
proprietary to or confidential to the other, including but not limited to, the
specifications, and the other information that relates to the Party’s past,
present and future research, development, business and technical information,
marketing plans, research, designs, plans, methods, techniques, processes and
know-how, whether tangible or intangible and whether or not stored, compiled or
memorialized physically, electronically, graphically or in writing
(collectively, the “Confidential Information”). Each Party agrees to secure and
protect the Confidential Information of the other Party in a manner consistent
with the maintenance of the Party’s rights therein, using at least as great a
degree of care as it uses to maintain the confidentiality of its own
confidential information of a similar nature, but in no event using less than
reasonable efforts. Neither Party will sell, transfer, publish,
disclose or otherwise make available any portion of the Confidential Information
of the other to third Parties, except as necessary to perform its obligations or
exercise its rights under this Agreement or as expressly authorized in this
Agreement.
8.2 Non-Confidential
Information. Notwithstanding Section 8.1, above, Confidential
Information of a Party shall not include information which: (1) is, as of the
time of its disclosure or thereafter becomes part of the public domain through a
source other than the receiving Party; (2) was rightfully known to the receiving
Party as of the time of its disclosure; (3) is independently developed by the
receiving Party; (4) is subsequently learned from a third Party not under a
confidentiality obligation to the disclosing Party; or (5) is required to be
disclosed pursuant to a duly authorized subpoena, court order, or government
authority, whereupon the Party subject to same shall provide prompt written
notice to the other Party prior to such disclosure, so that such Party may seek
a protective order or other appropriate remedy.
9.0 WARRANTIES.
MMMC
MAKES NO EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF ANY KIND WHATSOEVER TO BPL,
INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
OR INTENDED PURPOSE. UNLESS STATED IN THIS AGREEMENT, MMMC EXPRESSLY
DISCLAIMS ANY WARRANTY THAT THE BUSINESS SERVICES OR MMIS OR ANY OTHER SERVICES
PERFORMED OR RELATED WORKS WILL MEET ANY PARTICULAR REQUIREMENT OR BUSINESS NEED
OF BPL, EVEN IF MMMC HAS BEEN ADVISED OF SUCH REQUIREMENT OR NEED.
10.0 LIMITATION ON
LIABILITY.
EXCEPT AS
EXPRESSLY STATED ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL
OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES ARISING FROM OR
AS A RESULT OF BUSINESS OR OTHER SERVICES PROVIDED BY MMMC OR THE INABILITY TO
USE THE MMIS, RELATED SOFTWARE, OR OTHER WORKS THAT MAY BE CREATED FOR BPL, FOR
ANY REASON WHATSOEVER.
11.0 TRANSFER OR
ASSIGNMENT.
This
Agreement may be transferred or assigned by MMMC with prior written notice to
BPL, and BPL may not transfer or assign this Agreement without the prior written
approval of MMMC.
12.0 BINDING
EFFECT.
This
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors, assigns and legal representatives.
13.0 NOTICES.
All
notices and invoices required or permitted to be given hereunder shall be in
writing and deemed duly given if hand delivered or sent by registered or
certified mail, postage prepaid, addressed as follows :
If to Best Plastics, LLC or
to Bohbot :
Best
Plastics, LLC
000
Xxxxxxxxx Xx.
XxXxxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxx
If to MMMC :
000
Xxxxxxxx Xxx.
Xxxxx Xxx
Xxxxxx 00000
Attention:
Baruh (Xxxxx) Hayut
Any
change of address shall be effective only if given in writing and with the same
formalities required in this Section.
14.0 RELATIONSHIP OF THE
PARTIES.
At all
times hereunder, with respect to this Agreement and services to be provided
hereunder, the relationship of MMMC to BPL shall be that of an independent
contractor and shall not be construed to constitute that of partners, joint
ventures, principal and agent or employer and employee.
15.0 OTHER.
Except to
the extent that an executed Addendum may modify this Agreement, this Agreement
and Exhibits attached hereto constitutes the entire agreement between the
Parties with respect to the subject matter hereof and supersedes all prior
negotiations, representations or agreements, whether written or
oral. Any modification of this Agreement shall be in writing,
executed with the same formality as this Agreement, and signed by a duly
authorized representative of each of the parties hereto. Should any part
or provision of this Agreement be held unenforceable or in conflict with the
laws of any jurisdiction, then such part or provision shall be completely
severable from this Agreement and the validity of the remaining parts or
provisions shall not be affected by such holding. This Agreement is
being entered into and shall be governed by and construed in accordance with the
laws of the State of Georgia without regard to any conflicts of law
principles.
The waiver of any default or breach under this Agreement by either
party shall not constitute a waiver of any rights for any subsequent default or
breach. The
section headings in this Agreement are for reference purposes only and shall not
affect the interpretation of this Agreement.
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the first date set forth above.
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Best
Plastics, LLC
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By:
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/s/
Xxxxx Xxxxx
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By:
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/s/
Xxxxxxx Xxxxxx
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Name:
Xxxxx Xxxxx
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Name:
Xxxxxxx Xxxxxx
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Title:
Chairman and CEO
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Title:
CEO
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Date:
4/23/10
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Date:
4/23/2010
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/s/
Xxxxxxx Xxxxxx
XXXXXX
XXXXXX, Individually
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