MANUFACTURING AND DISTRIBUTION AGREEMENT
MANUFACTURING AND DISTRIBUTION AGREEMENT
| 1. | Parties | |||
| 1.1 | This Agreement is made by and between: | |||
| (a) | Manufacturer: ENSD Corporation located at Xx. 00,
Xxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxx, Xxxxxx 330, R.O.C., X.X. Xxx 000 |
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| (b) | Distributor: AMS Homecare Inc., whose business address
is: 0000 Xxxxxxxx Xxxxxx, Xxxxx, XX, Xxxxxx X0X 0X0. |
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| 2. | Background and Definitions | |||
| 2.1 | Manufacturer makes and sells durable
medical equipment, which Distributor is interested in distributing. Accordingly,
the parties have come to agreement on the terms and conditions, which
will govern their relationship and relative rights, as specified herein.
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| 2.2 | This agreement between the parties is
for the manufacture and distribution of durable health care products to
be sold by the distributor throughout North America. These Products arc
wheelchairs, commode chairs, rollators, walkers, crutches, quad canes
& canes, utility tips, commodes. shower benches, bed rails, patient
lifters. IV poles, screens, overbed tables, mayo stands, hampers, stools,
oxygen carts, Bathroom safety items, and Daily Living items. |
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| 2.3 | The Manufacturer will produce all of
the durable medical equipment for the Distributor under the brand name
of AMS Homecare Inc.. Logos will be provided by the Distributor to the
Manufacturer to imprint onto the medical equipment. The manufacturer will
not have its logo or name on any part of the medical equipment unless
agreed to in writing by both parties. |
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| 2.4 | The term "Product or The Product" (capitalized)
defines the goods which are governed by this Agreement as referred to
in paragraph 2.2 above. Their model numbers are specified below. or as
hereafter agreed by the parties to be governed by this Agreement. Model
numbers specify, as follow: Schedule A - Medical equipment The Distributer
and Manufacturer may mutually agree to change the Product by written agreement
as agreed to in the purchase orders. |
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| 3. | Appointment | |||
| 3.1 | Subject to the terms of this Agreement
the Manufacturer hereby agrees to manufacture Product for sale by the
Distributor in the Territory. |
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| 3.2 | The Manufacturer will provide the Distributor the rights to sell the entire Product under the AMS Homecare Inc. brand name within the Territory. Manufacturer shall not produce or sell Products, or replacement parts for the Products, under the AMS Homecare Inc. brand name, except for the Distributor. |
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| 4. | Distributor's Own Exclusive Brand Name | |||
| 4.1 | The Distributor may choose to change
any part or shape of the Product and if there is a cost to the Manufacturer
to implement and produce the changes requested by the Distributor then
the Distributor will be required to pay to the Manufacturer the prior
agreed upon costs of the changes. |
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| 4.2 | The changes requested by the Distributor
to the Manufacturer's Product, that results in a new invention will result
in the design being the joint property of the Distributor and the Manufacturer
or if the Distributor pays for all agreed upon molding costs the new invention
will become the sole property of the Distributor, as per the agreement
reached at that time. The New Design changes are not be duplicated in
any way without the prior written approval of the Distributor. |
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| 4.3 | Any dies, molds, patents, drawings or documents paid
100% by the Distributor will be the property of the Distributor. |
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| 4.5 | The Manufacturer agrees that the Distributor's own
brand names are the property of the Distributor and these names are not
to be duplicated or products sold to any other party under these names
without the written approval from the Distributor. |
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| 5. | Sub-Distributors | ||
| 5.1 | Distributor shall have the right to appoint sub-distributors
within the Territory, subject to all the limitations of this Agreement.
Such sub-distributors may function as a network of dealers throughout
the Territory for the purpose of selling and servicing, and supplying
replacement parts for, the Products. |
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| 6. | Term and Termination | ||
| 6.1 | The term of this Manufacturing and
Distribution Agreement shall commence on June 15, 2002 and continue
in effect for One year. |
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| 6.2 | This agreement can be terminated by any party
and neither party will be bound by any of the terms and conditions of
this agreement if notice in writing is provided to the receiving party
within six months of the commencement date of this agreement as indicated
in 6.1 above. |
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| 6.3 | This Agreement shall become enforceable as of the
time it is executed by both parties hereto. Execution by signature of
an original or facsimile copy by both parties is sufficient to start this
Agreement. |
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| 6.4 | This Agreement may be terminated at any time if either
party commits a material breach of this Agreement and fails to cure such
default within 60 days from mailing of a notice to do so by the other
party. |
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| 7. | Purchase | ||
| 7.1 | Ordering - The Distributor shall order products by
giving purchase orders in a form acceptable to the Manufacturer. The Distributor
may change the models of Product contained in an order up until 60 days
prior to the requested or otherwise agreed shipment date. Increases in
orders arc subject to acceptance by Manufacturer. |
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| 8. | Product Promotion | ||
| 8.1 | All selling costs, advertising and related business
costs relating to Distributor's operation and performance under this Agreement
are borne solely by Distributor unless specifically agreed otherwise in
this Agreement or in writing signed by the parties. |
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| 8.2 | Distributor agrees not to make unjustifiable claims
concerning the performance of the Products, and agrees to immediately
discontinue or modify any advertising, which Manufacturer deems inappropriate. |
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| 9. | Trademarks | ||
| 9.1 | Distributor has used and developed exclusive trademark
rights in, "AMS Homecare Inc" and Distributor acknowledges Manufacturer's
exclusive rights and agrees not to infringe upon Manufacturer's rights
within the period of this agreement. |
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| 9.2 | Distributor shall be free to use the Trademarks of
the Manufacturer such as "ENSD", with the Products in a manner consistent
with any standards set by Manufacturer, or as otherwise requested by Manufacturer.
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| 10. | Price | ||
| 10.1 | The initial purchase price that the Manufacturer
shall charge the Distributor for the Products shall be agreed to by both
parties. Such prices are in U.S. Dollars and F.O.B. the port of export.
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| 10.2 | Pricing of Products is subject to change with 60
days notice provided to the Distributor by the Manufacturer, except with
regard to a specific order that has been accepted by Manufacturer at a
specified price. |
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| 10.3 | Pricing of all products will reflect market conditions
and market surveys can be requested by the Distributor or the Manufacturer
to support the prices agreed to by both parties. Manufacturer will ensure
prices are reflective of market conditions to the best of its ability.
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| 11. | Payment and Delivery | ||
| 11.1 | Payments for any products ordered hereunder shall
be paid by an International Letter of Credit, at least 30 thirty days
prior to the date on which the Manufacturer estimates the Products so
ordered will be delivered. Payment thereunder shall be made against submission
by the Manufacturer of all necessary documents after the Product ordered
have been shipped. Default of payment under any such letter of credit
shall be deemed a material default permitting the Manufacturer to terminate
this Agreement in accordance with paragraph 6.0 above. |
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| 11.2 | Manufacturer shall only be liable for delay in delivery
if delivery is unreasonably late and more than twenty (20) days later
than specifically agreed to in writing. |
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| 11.3 | Risk in, and title to, Products ordered by the Distributor
passes to the Distributor upon their delivery by Manufacturer to a third
party freight carrier for ultimate delivery to Distributor. |
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| 12. | Modifications, Repairs, Replacement Parts and Warranty Service | ||
| 12.1 | Due to safety and warranty considerations, Distributor
agrees that maintenance shall be performed on any Product in accordance
with any standards or instructions from Manufacturer. |
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| 12.2 | The manufacturer shall provide a minimum one year
warranty on all Product that is properly used by the end user and parts,
from the date the Product is sold by the Distributor, but not to exceed
15 months from the date the Distributor receives the Product, unless otherwise
stated in writing by Manufacturer to the Distributor, and agreed to by
the Distributor. |
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| 12.3 | Any Product under warranty and found by the Distributor
to be faulty or having unacceptable workmanship may be returned to the
Manufacturer and the Manufacturer shall replace and redeliver the product
to the Distributor or if requested by the Distributor the cost must be
refunded. |
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| 12.4 | Distributor agrees to stock reasonable supplies of
spare parts to service the Products sold and in service from Distributor.
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| 12.5 | The Manufacturer shall for a period of five years
following sale of any Product, continue to sell to the Distributor replacement
parts for such Products. |
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| 12.6 | The parties acknowledge that it is the intention
of the parties that the Manufacturer provide such replacement parts as
required to rectify any breach of warranty, and the Distributor or its
agents or dealer will provide such servicing as is required to rectify
any such breach, all in accordance with the Agreement. The Manufacturer's
such warranty to delivered goods shall be fifteen (15) months from the
date of shipment. |
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Distributor shall keep records of warranty periods
and servicing, and shall provide them to the Manufacturer upon request.
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| 13. | Warranties by Manufacturer | ||
| 13.1 | Manufacturer warrants that to the best of its knowledge
Product does not infringe any proprietary rights of others within the
Territory. |
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| 13.2 | Manufacturer makes no warranty that patent, design
or utility model protection will be obtained in the Territory and further
makes no warranty as to the effectiveness of any patent, design or utility
model protection that is obtained. |
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| 13.3 | Manufacturer warrants that the Product delivered will be same or very similar as specifications released in related product information unless otherwise agreed. |
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| 13.4 | The Manufacturer warrants that it shall return any
and all confidential information of Manufacturer when this Agreement is
terminated including the Trademark, AMS Homecare Inc. |
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| 13.5 | The Manufacturer warrants that adequate insurance
has been obtained by the Manufacturer to cover claims against the Manufacturer
due to defects in the Product. |
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| 13.6 | The Manufacturer agrees to provide all manuals of
its products if requested by the Distributor. |
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| 14. | Warranties by Distributor | ||
| 14.1 | Distributor warrants that it shall return any and
all confidential information of Manufacturer when this Agreement is terminated
including the Trademark, "ENSD". |
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| 14.2 | All technical information that is the property of
the Manufacturer with regards to the Product cannot be copied by the Distributor
unless agreed to by both parties and must be returned to the Manufacturer
upon the expiration of this Agreement. |
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| 15. | Confidential Information | ||
| 15.1 | The relationship between Manufacturer and Distributor
may lead to the disclosure of confidential information. Such confidential
information may include, for example: drawings, sketches, written and
oral descriptions, photographs, plans, specifications, date, formulate,
processes, apparatus, designs, prototypes, samples, customer lists, price
lists, studies, findings, reports, computer programs, inventions and know-how;
but is not limited to these specific forms of information. |
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| 15.2 | The Manufacturer and the Distributor desires the
opportunity to use confidential information solely for the limited purposes
relating to the manufacture, selling, distribution and installation of
the Product in the Territory. |
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| 15.3 | The Manufacturer and the Distributor agree to maintain
the secrecy of Manufacturer's and the Distributor's confidential information.
The Manufacturer and the Distributor further agrees not to disclose any
confidential information to any person other than employees thereof who
need to know confidential information in order to fulfill the limited
purposes described above. The Manufacturer and the Distributor agree to
assume responsibility for unauthorized disclosure and use each party's
employees and others who gain access to the confidential information through
their businesses. All employees or agents of Manufacturer and the Distributor
to whom the confidential information is disclosed will be told of the
confidential relationship evidenced hereby and the responsibilities created
under this Agreement. |
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| 15.4 | The Manufacturer agrees that all tangible materials
embodying the confidential information remain the exclusive property of
Distributor and will be appropriately secured to prevent unauthorized
use or access, and further will be returned upon termination of this Agreement.
Manufacturer further agrees not to manufacture goods using the confidential
information unless authorized by Distributor in writing. |
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| 15.5 | Nothing in this agreement shall deprive the Distributor
of the right to use of disclose any information which is at the time of
disclosure generally known to the trade of the public, which becomes at
a later date generally known to the trade or the public through no fault
of the Distributor, and then only after said later date; which is possessed
by Distributor as evidenced by written or other tangible evidence, before
receipt thereof from Manufacturer. Information sent by Manufacturer to
Distributor which is marked "proprietary", "confidential", "secret" or
other words of similar import shall be presumed confidential information
for purposes of this Agreement until proven otherwise. |
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| 16. | Limitations on Distributor | ||
| 16.1 | Distributor agrees not to infringe any proprietary
rights of Manufacturer, such as patent rights, trademark rights, copyrights,
and trade secret rights. |
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| 17. | Independent Contractors - The
Manufacturer and Distributor are independent contractors, and nothing
herein shall entitle either party to act as the agent of the other party.
Nothing in this Agreement shall be misconstrued as creating a franchise
or joint venture except as agreed to in paragraph 4.0. |
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| 18. | Claims Against Manufacturer -
Distributor will defend, indemnify, and hold Manufacturer harmless from
and against all liability and claims caused by the negligence of malfeasance
of Distributor or arising from the defective installation of servicing,
or due to misrepresentation of the Product. |
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| 18.0 | The Manufacturer is liable for any claims caused by defects in manufacturing. | ||
| 19. | Assignment | ||
| 19.1 | The Distributor may, with the consent of the Manufacturer,
which consent shall not be unreasonably withheld, assign its rights and
obligations under this Agreement to any subsidiary or other affiliate.
Assignment to an unrelated party shall require the consent of Manufacture.
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| 20. | Entire Agreement - Thus Agreement
represents the entire agreement between the parties and any previous agreements,
understanding or arrangements, whether oral or written, are hereby excluded.
Other topics or further details that are not covered in this Agreement
shall be added into Schedule B and considered as part of this Agreement.
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| 21. | Partial Enforceability - Any provision
hereof that is held to be inoperative, unenforceable or invalid in any
jurisdiction shall be inoperative, unenforceable or invalid in that jurisdiction
without affecting any other provision hereof in that jurisdiction or the
operation, enforceability or validity of that provision in any other jurisdiction,
and to this end the provisions hereof are declared to be severable. |
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| 22. | Modification of Agreement - No
modification of this Agreement shall be valid or binding unless the modification
is in writing and executed by the parties to this Agreement. |
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| 23. | Waiver - Condoning, excusing,
or waiving by any party of this Agreement, of any default, breach, or
nonobservance by any other party thereto will not operate as a waiver
with respect to any continuing or subsequent default, breach, or nonobservance.
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| 24. | Force Majeure - If the performance
under this Agreement is prevented, restricted, or interfered with by reason
of fire or other casualty or accident; strikes or labor disputes; inability
to prove raw materials, power or supplies, war or other violence; any
law, order, |
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proclamation, regulation, ordinance,
demand. or requirement of any government agency, or any other act or condition
beyond the reasonable control of the parties hereto, the party so affected,
upon giving prompt notice to the other party, will be excused from performance
to the extent of the prevention, restriction, or interference, provided
that the party so affected uses its best efforts to avoid or remove the
causes of nonperformance and continues performance when causes are removed.
Such notice shall be completed within 48 hours after it happens. |
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| 25. | Counterparts - This Agreement
may be executed in any number of counterparts, each of which shall be
deemed to be an original, all of which shall constitute one and the same
Agreement. |
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| 26. | Execution by Manufacturer |
ENSD Corporation | ||
| Date: | June 6th, 2002 | By: | /s/ Signature | |
| President | ||||
| 27. | Execution by Distributor |
AMS Homecare Inc. | ||
| Date: | June 6th, 2002 | By: | /s/ Xxxx Xxxx | |
| Xxxx Xxxx, President | ||||
