DISTRIBUTOR AGREEMENT
Exhibit 10.05
TERMS AND
CONDITIONS
This
Distributor Agreement (“Agreement”) is made and entered as of the 16th of
October, 2009 (the “Effective Date”), by and between;
BioXcell
(INVO Bioscience), Incorporated, a Massachusetts Corporation located at 000
Xxxxxxxx Xxxxxx Xxx 000X Xxxxxxx, XX 00000 (“COMPANY”) and,
Gonagen
Ilac Ithalat Ihracat Sanayi ve Ticaret A.S. located at Mecidiyekoy Mah.
Avnigilligil Sok. Meric Xxxxx Xx.00 Xxx: 0 X.0, Xxxxx, Xxxxxxxx
(“DISTRIBUTOR”).
In
consideration of the promises and mutual covenants contained herein the parties
agree as follows:
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1.
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DISTRIBUTION
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1.1 Distribution.
Subject to the terms and conditions of this Agreement and, if applicable, a
written addendum signed by COMPANY (“Addendum”), COMPANY hereby grants
Distributor an exclusive, non-transferable right during this Agreement to
distribute certain products and services offered by COMPANY (the
“Products”).
1.2 Exclusive
Distribution
Distributor
agrees that the right of distribution granted in the area of representation is
exclusive. Area of representation is determined mutually by the
parties as Turkey, North Cyprus, Kosovo, Albania, Azerbaijan, Uzbekistan,
Bulgaria (clinics) and Kazakhstan. Except the representation area of the
Distributor, COMPANY reserves the right to distribute, whether directly of
indirectly, any and all Products worldwide without
restriction. COMPANY may grant the same, similar and/or any other
distribution rights to any other entity, including without limitation to other
distributors, dealer and original equipment manufacturers.
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2.
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PRICES,
ORDERS, DELIVERIES AND PAYMENT
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2.1
Prices. COMPANY shall offer the Products to Distributor based on a
written or electronic price list (the “Price List”) supplied by
COMPANY. Distributor agrees to purchase the Products in accordance
with the terms and conditions noted on the Price List. COMPANY may
amend the Price List to add or delete Products and may adjust the pricing with
ninety (90) days advance notice to Distributor. Price list revision
shall apply to all orders received after the effective date of such
revision. Product price increases shall not apply to unfulfilled
purchase orders prior to the effective date of the Purchase Price
increase. At its sole discretion, COMPANY may apply Product price
decreases to pending purchase orders accepted by COMPANY prior to the effective
date of the decrease but not yet shipped. All prices, fees and
delivery terms are Ex Works (“EXW”) (IncoTerms 200) COMPANY’s manufacturing
plant. In addition to the applicable prices and fees, Distributor
shall pay, or at COMPANY’s option reimburse COMPANY, for any and all taxes,
customs, duties, freight, insurances, shipping and related expenses associated
with the Products.
2.2
Taxes. All prices, fees and charges covered by this Agreement do not include any
federal, state, local or foreign taxes that may be applicable to the Products,
including all nonresident withholding tax, wholesale sales tax, value added
taxes, goods and services tax, excise, sales, use and similar taxes and customs
duties.
Distributor
shall pay or reimburse COMPANY for all such taxes and other
charges. When COMPANY has the legal obligation to collect such taxes,
the appropriate amount shall be added to Distributor’s invoice and paid by the
Distributor, unless and until Distributor provides COMPANY with a valid tax
exemption certificate.
2.3
Orders and Acceptance. For any Purchase order, Distributor shall
place the order and corresponding payment to COMPANY. Distributor
shall comply with all COMPANY minimum purchase order
requirements. Orders shall not be deemed accepted or binding without
written notification thereof by COMPANY. This Agreement shall govern
all Distributor orders, and nothing contained in Distributor’s purchase orders,
confirming memos or other communications shall supersede or modify this
agreement.
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2.4
Delivery and Shipping. COMPANY shall not liable to Distributor or any
third party if COMPANY fails to deliver an order, delivers an order incorrectly
and/or fails to meet a delivery date. If any order exceeds COMPANY’s
inventory, COMPANY shall allocate available inventory according to and in its
sole discretion. Returns are at the discretion of
BioXcell. Notwithstanding and provision to the contrary, should the
COMPANY fail to meet delivery date that has been given with 60 days or more
prior advance notice; the COMPANY will adjust DISTRIBUTOR invoice by deducting
5% of invoice pre shipping.
2.5 Three
Month Rolling Forecast; Purchase Orders Fifteen Days in
Advance. On or before the 10th day of
every calendar month, Distributor shall submit to COMPANY a forecast of all of
the d Distributor’s purchases of the products for the next three (3)
months. Distributor shall submit to COMPANY a non-cancelable Purchase
Order at least fifteen (15) days in advance of the requested ship date for any
and all products.
2.6
Payment. All credit terms and terms of payment are to be determined
by BioXcell, based upon completed credit application and credit
verification. Once credit terms have been established, payments may
be sent via wire transfer only as follows:
For the
first six (6) months the payment term will be 50% payment upon delivery with
letter of credit with the remaining 50% payment term of forty-five (45) days
after the date of shipment.
Month’s
seven (7) to twelve (12) upon positive credit review terms will change to 60
days net with letter of credit starting at the date of shipment.
After
twelve (12) months based on positive credit review terms will be ninety (90)
days net starting on the date of shipment with letter of credit.
(a). For
wire transfer, payments shall be wired to:
Bank
name: Bank of America
Address:
Bank of America, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx Xxxx, XX 00000
Swift
Address: XXXXXX0X or applicable: Chips Participant no. 0959
ABA:
0000-0000-0 (Bank of America) if needed for direct credit to BOA
Credit
Acct Name: Century Bank & Trust
Address:
000 Xxxxxx Xxx. Xxxxxxx, XX 00000
Credit
Acct Number: 0000006-94537
CENTURY
BANK ACCOUNT NUMBER 00000000, beneficiary BioXcell, Inc. (INVO Bioscience) 000
Xxxxxxxx Xxxxxx, Xxxxx 000X, Xxxxxxx, XX 00000, XXX
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3.
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OWNERSHIP
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3.1
Ownership. All right, title and interest in and with respect to the Products,
including without limitation all intellectual property rights therein, are
solely owned by shall remain with COMPANY, its licensors and
suppliers. Distributor shall not copy, make copies of, translate,
localize, disassemble, decompile,, reverse engineer, attempt to discover the
source code of, modify, create derivative works from and/or in any way change
any part of the Products, including without limitation the documentation,
packaging and trademarks.
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4.
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MARKETING
OBLIGATIONS OF DISTRIBUTOR
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4.1
Marketing and Support. Distributor shall maintain a staff of
qualified sales and training personnel to perform its obligation hereunder and
shall actively promote and market the Products. Distributor shall
provide first and second level support for the Products and shall directly
support its resellers and end users.
COMPANY
will provide telephone support to Distributor during COMPANY’s normal business
hours in accordance with COMPANY’s then current support program.
Any
training or further support by COMPANY shall be
chargeable. Distributor shall provide its resellers and end users
with sufficient and reasonable assistance in training, service and customer
support with respect to products.
4.2
Representations and Third Party Agreements. Distributor agrees that
all representations and warranties it makes with respect to the Products shall
be consistent with not exceed and those made by COMPANY
herein. Distributor agree that all theirs party agreements with
resellers and end users, shall have terms and conditions equal to and consistent
with the terms and conditions of this Agreement and shall state that COMPANY is
the intended beneficiary of these obligations and that COMPANY is entitled to
enforce its rights against both Distributor and such third party.
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5.
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TRADEMARKS
AND NOTICES
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5.1
Trademarks. COMPANY grants Distributor a non-exclusive, non
transferable, limited license to use the Product trademarks, service marks and
trade names (“Trademarks”) solely in connection with the marketing and sales of
the Products in accordance with and during this
Agreement. Distributor shall use the Trademarks in accordance with
and during this agreement. Distributor shall use the Trademarks in
accordance with instructions from COMPANY, which COMPANY may revise in its
discretion. Distributor agrees to cooperate with COMPANY in
facilitating COMPANY’s monitoring and control of the nature and quality of the
Products and related marketing material and to supply COMPANY with specimens of
use of the Trademarks upon request. Distributor acknowledges the
validity of the Trademarks and the ownership of the Trademarks by COMPANY and
its suppliers and licensors.
All such
Trademarks shall bear the designation ”tm” of
the designation “®”, as specified by COMPANY. Distributor shall not
challenge the rights of COMPANY and its suppliers and licensors in any
Trademarks. All goodwill and reputation which accrues to any
Trademarks in the course of Distributor’s business shall automatically vest in
COMPANY and its suppliers and licensors without any separate or additional
consideration of any kind to Distributor, and Distributor agrees to take all
such reasonable actions necessary to effect such vesting.
5.2
Notices. Distributor shall not remove, alter or obscure any patent,
trademark, copywrite or other notice to marking in or on any
product.
5.3
Prohibition of Similar Trademarks. Distributor shall not adopt, use
register, make application for or attempt to register any acronym, trademark,
trade name or other marketing name of COMPANY or any confusingly similar xxxx,
uniform resource locator (URL), Internet domain name, or symbol as part of
Distributor’s own name or the name of any of its affiliates or as the name of
any product it markets.
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6.
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WARRANTY
AND DISCLAIMER
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6.1
Limited Warranties. COMPANY makes no warranty, implies or otherwise,
regarding the performance or reliability of any third party products (hardware).
Installation of any third party products other than as authorized by COMPANY
will void all warranties. In addition, use, modification and/or
repair of the Products other than as authorized by COMPANY voids all
warranties.
6.2
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
COMPANY’s current latest standard Product return procedures, which COMPANY may
change from time to time. Unless Distributor returns a Product in
accordance with COMPANY’s limited warranty and latest current standard product
return procedures, Distributor shall not return any product. At its option,
COMPANY shall repair or replace defective Products that are covered by the
COMPANY’s limited warranty and returned in accordance with COMPANY’s standard
procedures by using new or like-new parts or Products, or provide a refund of
the price paid to COMPANY for such Product. Distributor shall pay for
all shipping charges, insurance, taxes, duties, and other charges for all RMA
shipments. COMPANY shall pay freight charges on shipments to
Distributor of product repaired or replaced under warranty; however, Distributor
shall pay all duties, customs, taxes and other charges on such
shipments. Products that COMPANY determines are not defective, not
under warranty or not returned in compliance with COMPANY’s return procedures
shall be returned to Distributor and Distributor shall pay all freight,
insurance, duty, taxes and other charges related to these products.
6.3
DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE
EXPRESS LIMITED WARRANTIES SET FORTH IN THIS SECTION, COMPANY MAKES NO
REPRESENTATIONS OR WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO ANY OF THE
PRODUCTS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS
AGREEMENT OR ANY OTHER COMMUNICATION, AND THEY SPECIFICALLY DISCLAIM ANY IMPLIED
WARRANTY OR CONDITION OF SECURITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND/OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. THERE IS
NO WARRANTY OR REPRESENTATION THAT THE OPERATION OF THE PRODUCTS WILL BE
UNINTERRUPTED, FAULT TOLERANT, SECURE OR ERROR-FREE. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, THE SOLE LIABILITY OF COMPANY, AND THE SOLE
REMEDY, RELATING TO ANY AND ALL APPLICABLE WARRANTIES SHALL BE AT
COMPANY’S OR OPTION, TO REPAIR THE PRODUCT, REPLACE THE PRODUCT, OR PROVIDE A
REFUND FOR THE PRICE PAID TO COMPANY FOR THE PRODUCT.
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7.
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TERM
AND TERMINATION
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7.1 Term
and Termination. This agreement shall become effective on the
Effective Date and shall expire five (5) year thereafter unless earlier
terminated in accordance with this Agreement. This agreement may be
renewed for additional five (5) year periods by mutual agreement of the
parties. This agreement is not an “evergreen” contract or of
indefinite duration. Any party may terminate this Agreement, with
legal and reasonable cause, by giving 120 day written notice.
7.2
Termination for insolvency. This Agreement shall terminate, without
notice,
(i) upon
the institution by or against Distributor of insolvency, receivership or
bankruptcy proceedings or any other proceedings for the settlement of
Distributor’s debts,
(ii) upon
Distributor’s making an assignment for the benefit of creditors, or
(iii)
upon Distributor’s dissolution or ceasing to function as an ongoing business
concern.
7.3 No
Damages or Other Rights Upon Termination. In making this Agreement,
all parties have considered that they will take expenditures in preparing for
performance under this Agreement and will possibly sustain losses and damages in
the event of its termination. With the exception of unreasonable and unlawful
termination of the contracting parties, the parties expressly agree that the
rights of termination in this Agreement are absolute. The parties
agree that no party shall be liable to any other party for damages,
compensation, payments, costs or other types of losses arising out of
termination of this Agreement, and the parties expressly waive all such damages,
compensation, payments, costs and losses, including without limitation those
related to goodwill, prospective profits, anticipated sales, and amounts spent
on training, advertising, market development, leases and other
investments.
Distributor
agrees that any contracts or other arrangements it enters into with any third
parties relating to the Products will be consistent with and subject and
subordinate to the rights of termination in this
agreement. Distributor will indemnify and hold COMPANY harmless
against any and all liability, loss, damages, costs and expenses incurred in
connection with claims by any such third party.
7.4
Effect of Termination and Survival of Certain Terms. In the event that this
Agreement expires or is terminated, Distributor shall immediately pay all
outstanding amounts payable hereunder. Upon expiration or termination
of this agreement, all rights granted hereunder to Distributor and its resellers
shall terminate immediately, and Distributor and its resellers shall immediately
cease distribution and marketing of all Products and shall cease use of all
Trademarks. All provisions concerning termination, ownership of
intellectual property right and trademarks, indemnification, limitation of
liability, disclaimer of warranties, governing law, jurisdiction and venue shall
survive the termination and expiration of this Agreement.
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8.
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LIMITATION
OF TOTAL LIABILITY
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TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DISTRIBUTOR AGREES THAT THE
AGGREGATE, CUMULATIVE LIABILITY OF COMPANY FOR ALL CLAIMS RELATED TO THIS
AGREEMENT AND/OR THE PRODUCTS, REGARDLESS OF THE FORM OF ACTION (WHETHER IN
CONTRACT, TORT, UNDER STATUTE OR OTHERWISE), SHALL BE LIMITED TO THE AMOUNT PAID
BY DISTRIBUTOR FOR THE PRODUCTS GIVING RISE TO SUCH LIABILITY.
DISTRIBUTOR
AGREES THAT SUCH AMOUNT IS SUFFICIENT TO SATISFY THE ESSENTIAL PURPOSE OF THE
PROVISIONS OF THIS AGREEMENT AND THAT SUCH A LIABILITY IS A FAIR AND REASONABLE
ESTIMATE OF ANY LOSS AND DAMAGE LIKELY TO BE SUFFERED IN THE EVENT OF ANY
WRONGFUL ACT OR OMISSION BY COMPANY. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR COST OF PROCUREMENT
OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, OR ANY SPECIAL, INDIRECT,
RELIANCE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY
OF LIABILITY, RELATED TO THIS AGREEMENT OR THE PRODUCTS. THIS
LIMITATION SHALL APPLY EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. DISTRIBUTOR AGREES THAT THE PRICE OF THE PRODUCTS
REFLECTS THIS ALLOCATION OF RISK. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, COMPANY SHALL HAVE NOT LIABILITY WITH RESPECT TO DISTRIBUTOR’S
END USERS, RESELLERS AND/OR ANY OTHER THIRD PARTIES.
NOTWITHSTANDING
THE TERMS OF THIS SECTION, COMPANY DOES NOT EXCLUDE LIABILITY IN RESPECT OF
PERSONAL INJURY OR DEATH EXCEPT TO THE MAXIMUM EXTENT THAT IT CAN BE EXCLUDED OR
LIMITED BY LAW.
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9.
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CONFIDENTIAL
INFORMATION. “Confidential Information” means any information, technical
data, or know-how that, if disclosed in written form, is designated in
writing to be confidential or proprietary, or if disclosed orally, is
summarized and confirmed in writing within thirty (30) days as being
confidential or proprietary. Notwithstanding the foregoing, all
Price list, Product information, the terms and conditions of this
Agreement and any Addendum are deemed Confidential Information.
Confidential Information does not include information, technical data or
know-how that
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(i)
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Is
in the possession of the receiving party at the time of disclosure as
shown by the receiving party’s files and records in existence prior to the
time of disclosure, or
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(ii)
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Prior
to or after the time of disclosure becomes part of the public knowledge or
literature, not as a result of any wrongful inaction or action of the
receiving party, or
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(iii)
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Is
developed independently by the receiving party without use of or reference
to the Confidential Information of the disclosing party,
or
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(iv)
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Is
properly acquired from a third party having the right to
disclose such information,
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(v)
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Is
approved in writing for release by the disclosing party,
or
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(vi)
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Is
required to be disclosed by administrative or judicial action, provided
that the disclosing party is afforded sufficient time in advance to oppose
or limit such disclosure. Each party agrees not to use
Confidential Information disclosed to it by the other party for its own
use or for any purpose except to perform as required under this
Agreement. Neither party shall disclose the Confidential
Information of the other party to third parties or to its own employees
except employees who are required to have the information in order to
carry out the contemplated business discussions. Each party has
had or shall have employees to whom Confidential Information of the other
is disclosed sign a non-disclosure agreement in content substantially
similar to this Agreement. Each party agrees that it shall take
all reasonable efforts to avoid disclosure of Confidential Information of
the other including efforts at least as great as those used to protect its
own confidential information. Each party agrees to notify the
other party in writing of any misuse or misappropriation of any
Confidential Information of the other which may come to its
attention.
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10.
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MISCELLANEOUS
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10.1
Independent Relationship. The relationship of COMPANY and Distributor
is independent and only that of a vendor and vendee. Nothing
contained in this Agreement shall create any agency, employment, partnership,
joint venture or similar relationship between COMPANY and Distributor for any
purpose. No party shall have any right whatsoever to incur any
liabilities or obligations or to make any warranties on behalf of or binding
upon another party.
10.2
Indemnification. Distributor agrees to indemnify and hold COMPANY
harmless against any claim, liability, expenses, judgements, attorney fees and
damages that COMPANY becomes liable for by any reason of Distributor’s breach of
this Agreement or Addendum, or by reason of any act or omission of Distributor
in marketing, selling or supporting the Products.
10.3
Force Majcure. Except for payments of monies, no party shall be
liable for its failure to perform any obligations on account of strikes,
shortages, failure or acts of suppliers, riots, insurrection, fires, flood,
storm, explosions, acts of God, war, acts of terrorism whether actual or
threatened, acts of a public enemy, epidemies, quarantines, governmental action,
labor conditions, earthquakes, material shortages or any cause which is similar
to those enumerated or beyond the reasonable control of such party.
10.4
Nonassignability and Binding Effect. The parties shall not assign or
transfer this Agreement, except that COMPANY may assign and transfer its rights
and obligations under this Agreement to an affiliate, parent or subsidiary of
COMPANY. Subject to the foregoing sentence, this Agreement shall be
binding upon and insure to the benefit of the parties hereto and their
successors and permitted assigns.
10.5
Notices. Any notice to be given under this Agreement shall be
delivered to the address specified above postage prepaid, and if to COMPANY to
its Legal Department
(i) by
registered or certified mail,
(ii) by
overnight courier,
(iii) by
fax, or
(iv) by
first class mail.
Notice so
given shall be deemed effective when first sent.
10.6 Governing
Law; Jurisdiction; Venue. The laws of Switzerland shall govern this
Agreement.
All
disputes arising out of this Agreement shall be settled through the Arbitration
Rules of (ICC) the International Chamber of Commerce in Paris. The
place of Arbitration is Zurich.
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10.7
Export Law Compliance. Distributor understands and recognizes that
the Products and other material made available under this Agreement are subject
to the export administration regulations of the United States Department of
Commerce, other United States government laws and regulations related to the
export of technical data and equipment and products, and applicable foreign laws
and regulations. Distributor shall be solely responsible for compliance
with all such laws and regulations, and agrees to comply, and to ensure that its
resellers comply, with all such laws and regulations, including any future
modifications thereof. Distributor and its resellers shall be solely
responsible for obtaining any necessary export licenses and
exemptions. All products and related information and materials are
prohibited for expert or re-export to a number of countries and person,
including without limitation Cuba, Iran, Iraq, Libya, North Korea, Sudan, and
Syria, and to any person or entity on the U.S. Department of Treasury’s list of
Specially Designated Nationals, Specially Designated Narcotics Traffickers and
Special Designated Terrorists.
10.8
Compliance With Law. Distributor shall provide, pay for, be
responsible for, and keep in good standing all licenses, permits or other
applicable approvals pertaining to activities engaged in by Distributor that may
be required. Distributor shall comply in all respects with all
applicable laws and regulations, including without limitation federal, state,
local and foreign laws and regulations, pertaining to the distribution of the
Products and its obligations and activities under this Agreement.
10.9
Severability. If any provision of this Agreement is found to be
invalid, unlawful or unenforceable by a court of competent jurisdiction, such
invalid term shall be severed from the remaining portion of this Agreement,
which will continue to be valid and enforceable to the fullest extent permitted
by law.
10.10
Entire Agreement. This Agreement consists of the terms and conditions
herein and constitutes the entire Agreement between the parties which supersedes
all prior agreements, discussions and understandings, whether oral or written,
between the parties hereto with respect to the subject matter
hereof. This Agreement may be executed in faxed counterparts, each of
which shall be deemed an original and all of which together shall constitute one
instrument. This Agreement may be modified only by a written
Amendment hereto executed by duly authorized representative of all the
parties.
10.11
Language. This Agreement is in English only, which shall be
controlling in all respects. All communications and notices shall be
in English.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized representative on the dates set forth below.
DISTRIBUTOR:
Gonagen
Ilac Ithalat Ihracat Sanayi ve Ticaret A.S
By: s/ Gulbin
Bahceci
Printed
Name: Xxxxxx
Baheci
Title:
General
Manager
Date:
October 16, 2008
BioXcell,
Incorporated
By: s/Xxxx X
Xxxxxxx
Printed
Name: Xxxx Xxxxxxx
Xxxxxxx
Title:
Vice President, Sales
&
Mktg.
Date:
October 16, 2008
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