EXHIBIT 10.55
SALES AND MARKETING AGREEMENT
This Sales and Marketing Agreement is made and entered into in as of
this 27th day of February, 2007 by and between Performance Health Technologies,
Inc. (the "COMPANY") and Interactive Metronome, Inc. (the "CONTRACTOR").
RECITALS
The Company is engaged in the business of manufacturing,
distributing and marketing products known as the "Pro Products" and the Stroke
Survivor "Home" Products using its proprietary Core:Tx(R) technology for
measuring a person's range of motion (the "PRODUCTS"). The Contractor markets
the Interactive Metronome ("IM") to the health care industry and is desirous of
also marketing the Products for the Company upon the terms and conditions set
forth below.
NOW, THEREFORE, in consideration of the foregoing, and the
mutual covenants and promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
each party hereto to the other, it is agreed as follows:
AGREEMENT
1. APPOINTMENT AS DISTRIBUTOR. The Contractor agrees to and shall
solicit sales of the Products to those accounts identified by the
Contractor that are or that may be interested in acquiring the
Products.
2. EXCLUSIVITY. The Contractor shall be the exclusive distributor
with respect to the United States and Canada (the "Territory") for
the following markets:
a) NEUROLOGICAL REHABILITATION MARKET. Facilities that provide
neurological and motor therapy to adults who have suffered
stroke, brain injury and other neuro-muscular disorders provided
that sales efforts are directed to the Contractor's contacts in
the areas of the rehabilitation facilities that treat the
individuals referenced above regardless of whether they are IM
customers.
b) PEDIATRIC AND DEVELOPMENTAL MARKET. Clinics and hospitals that
currently offer the IM for individuals, typically children,
diagnosed with cognitive and motor discrepancies such as Autism
Spectrum Disorders, sensory integration disorders and a range of
speech and language disabilities, provided that sales efforts are
directed to the Contractor's contacts in the areas of the clinics
and hospitals that treat the individuals referenced above; and
c) SPECIALISTS. Physical therapists, occupational therapists and
speech therapists who enroll and participate in IM's
Certification or CEU programs.
The Contractor is hereby appointed as a non-exclusive distributor for
the Products with respect to all other markets within the Territory; provided
that if the Company appoints an exclusive distributor for any or all such
markets during the Term hereof, the Contractor shall respect that exclusivity.
3. PRODUCT SALES.
A. The parties shall agree upon suggested retail selling
prices for the Products, which will be periodically revisited and may be
adjusted from time to time based on market conditions and feedback.
B. The Contractor shall order Products from the Company to
meet its estimated needs and the Company shall ship such Products to the
Contractor. The purchase price for the Products shall be forty percent (40%) of
the suggested retail selling price for the "Pro Products" and fifty percent
(50%) of the suggested retail selling price for the Stroke Survivor (Home)
Products. The Products shall be shipped FOB the Company's place of shipment and
title to the Products and risk of loss shall transfer to the Contractor upon
placement of the Products with the carrier. The purchase price shall be payable
one half upon submission of a purchase order, and one half upon delivery of the
Products to Contractor and completion of any acceptance testing agreed to by the
parties.
4. THE COMPANY'S OBLIGATIONS. The Company shall supply the Contractor with
appropriate sample Products, catalogs and advertising materials which shall be
reasonably necessary to assist the Contractor in making and promoting sales of
Products.
5. THE CONTRACTOR'S OBLIGATIONS. The Contractor shall use all commercially
reasonable efforts to promote the Products, and specifically agrees that it
shall:
o Develop a website directed at Occupational, Physical and Speech
Therapists. This site would be linked to and from the Contractor's
website.
o Have its Clinical Advisory Board develop a clinical education tool for
the use of the Products.
o Incorporate the clinical education tool into the Contractor's national
certification course schedule.
o Display and demonstrate the Products at regional or national trade
shows where the IM is also displayed.
o Promote the Products throughout its 4,000+ professional network.
o Promote the Products as a complementary supportive product of the IM.
o Demonstrate and sell the Products in person or through the Contractor's
dedicated telephone marketing staff.
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6. WARRANTIES. The Contractor shall not make any warranties with respect to the
Products of the Company. Any warranties to be made by the Company shall be
reflected in its acceptance, invoice or other contract forms.
7. TERM. This Agreement shall be for an initial term of one year. During the
first year, this Agreement may be terminated by the Company immediately upon the
Contractor's material breach of this Agreement or the Contractor's inability to
perform its obligations herein for financial reasons or otherwise. After the
first year, it may be terminated for any reason or for no reason by either party
upon 30 days advance written notice.
8. RELATIONSHIP OF PARTIES. The Contractor is and at all times shall be an
independent contractor of the Company and not a partner or employee of the
Company. The Contractor shall represent itself to all Customers and all other
persons only as an independent contractor and not as an agent or partner of the
Company. Remuneration to the Contractor shall not be subject to withholding or
other employment taxes as required for compensation paid to employees. The
Contractor shall timely file all required United States federal, state and local
income, self-employment, unemployment and other tax, labor, information and all
other returns and shall pay when due all taxes on account of its remuneration
hereunder. The provisions of the preceding sentence shall survive the
termination of this Agreement.
9. EXPENSES. The Contractor shall be responsible for and shall pay, and hereby
indemnifies the Company against, all expenses incurred in connection with
soliciting the sale of the Products, with the exception of any advertising
campaigns recommended by the Contractor that the Company agrees to fund.
10. CONFIDENTIALITY.
A. Each party agrees that it will not, at any time during the
term of this Agreement or thereafter, in any form or manner, directly or
indirectly, voluntarily or involuntarily, disclose, furnish or make accessible
to any person or other entity or use for its own benefit, other than in
furtherance of the business and interests of such party, any Confidential
Information (hereinafter defined) of the other party which it may obtain or have
access to, receive, contribute to, originate, or discover relating to Trade
Secrets (as that term is defined under all applicable laws), products,
customers, prospective customers, services and sales information. Confidential
Information shall include, without limitation, any of the following types of
information outside of the public domain:
(i) Any and all forms of raw and other data relating to the
other party's business, products or processes, whether or not marked
"CONFIDENTIAL", derived from any and all sources, including without
limitation: meetings; information from correspondence or otherwise
analyzed data; computer printouts; computer programs; flow charts;
graphs and graphic materials.
(ii) Any and all materials, documents, information, systems,
processes and techniques relating to products, computer software,
market or other research techniques, and any and all materials,
documents, information, systems, processes obtained from or on behalf
of or at the direction of the other party, or any current or
prospective customer of the other party.
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(iii) Any and all information, computer printouts, materials,
documents, processes, schematics, compilations or reports relating to
the sales history of any current or prospective customer, customer
files, pricing structure, rebates, marketing information, customer base
or business forms of the other party.
B. The Contractor confirms, acknowledges and agrees that any
and all tangible and intangible records, tapes, notes, pictures, video
tapes, printouts and documents relating to the Products which it may
use, create, utilize or possess during the term of this Agreement,
including but not limited to those written, produced or created by the
Contractor, are the sole and exclusive property of the Company and may
not be duplicated for the Contractor's own benefit without the express
written consent of the Company. All such items in the Contractor's
possession or control will be immediately delivered to the Company upon
request and, if not earlier requested, upon the termination of this
Agreement.
C. The provisions of this Section 10 shall survive termination
of this Agreement, and shall survive the Term of this Agreement for a
period of four (4) years following termination of the Agreement.
11. RESTRICTIVE COVENANT. In view of the Contractor's access to Confidential
Information and Trade Secrets of the Company and in consideration of the value
of such property to the Company, during the term of this Agreement and for a
period of two years after termination of this Agreement for any reason, the
Contractor shall not, without the prior written consent of the Company, in any
manner, directly or indirectly:
A. Contact or solicit the trade or patronage of any of the
customers of the Company for itself or any other person or entity with respect
to any products that are designed for or may be used to measure a person's range
of motion. The term "CUSTOMERS" shall for purposes hereof be deemed to include,
without limitation, the officers, directors, agents, employees, parents,
subsidiaries and affiliates of such customers, and all persons or organizations
with whom the Company has done business, within the twelve (12) month period
preceding the termination of this Agreement. The terms of this subparagraph
shall not prohibit the Contractor from selling the IM, or other products that
are not similar to the Products, to the customers.
B. Solicit, induce or attempt to induce any employee of the
Company to leave the Company's employ to become connected in any way with, or
employ or utilize any such employee in, any other business engaged in the sale
or distribution of products similar to the Company's Products.
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12. REMEDIES.
A. (i) Each party agrees that the covenants contained in
Sections 10 and 11 hereof are necessary to protect the interests of the
other in Confidential Information and Trade Secrets, and to protect and
maintain the customer relationships and other legitimate, proprietary
interests of the Company, both actual and potential, which the
Contractor would not have had access to or any involvement in but for
the independent contractor relationship with the Company. The
Contractor confirms, acknowledges and agrees that enforcement of the
covenants in Sections 11 hereof would not prevent the Contractor from
earning a livelihood. Each party agrees that in the event of an actual
or threatened breach by the other party of any of the covenants set
forth herein, the other party would be irreparably harmed and the full
extent of injury resulting therefrom would be impossible to calculate
and the other party would not have an adequate remedy at law.
Accordingly, each party agrees that temporary and permanent injunctive
relief would be appropriate remedies against such breach, without bond
or security; provided, however, that nothing herein shall be construed
as limiting any other legal or equitable remedies available to the
aggrieved party.
(ii) The losing party shall pay all costs and
expenses, including without limitation, court costs, investigation
costs, expert witness fees, and attorneys' fees, incurred by the
prevailing party in connection with the successful enforcement by the
prevailing party of its rights under this Agreement.
B. Notwithstanding any dispute involving application of the
injunctive relief as provided in Section 11 hereof, any other dispute or claim
arising out of any provision of this Agreement, whether based on statute,
regulation, contract, tort or otherwise, shall be submitted to arbitration
before a single arbitrator pursuant to the commercial arbitration rules of the
American Arbitration Association. Any such arbitration shall be conducted in
Princeton, New Jersey. An arbitration award rendered pursuant to this Section 12
shall be final and binding on the parties and may be submitted to any court of
competent jurisdiction for entry of a judgment thereon, in accordance with the
Uniform Arbitration Act. The parties agree that punitive damages may not be
awarded in an arbitration proceeding under this Agreement.
13. NO EMPLOYEE BENEFITS. The Contractor shall not be eligible for any benefits
payable to employees of the Company.
14. ASSIGNMENT. This Agreement may not be assigned by either party in whole or
in part without the prior written consent of the other party hereto, except as
specifically provided herein. This Agreement may be assigned by the Company, in
its sole discretion, to any subsidiary or affiliate of the Company or to any
successor of the Company either by merger or acquisition of substantially all of
the assets or the business of the Company as a going concern.
15. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New Jersey.
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16. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal or personal
representatives, successors and assigns.
17. NOTICE. All notices required hereunder shall be in writing and shall be
deemed to have been given if delivered personally or by United States certified
or registered mail, postage prepaid, return receipt requested, or by a
recognized overnight delivery service to the parties at their respective
addresses set forth below their signatures to this Agreement, or to such other
address as shall be specified in writing by either party to the other in like
fashion.
18. ENTIRE AGREEMENT. This Agreement sets forth and constitutes the entire
agreement and understanding of the parties with respect to the subject matter
hereof. This Agreement supersedes any and all prior agreements, negotiations,
correspondence, undertakings, promises, covenants, arrangements, communications,
representations and warranties, whether oral or written (together the "PRIOR
COMMUNICATIONS") of any party to this Agreement and no party to this Agreement
may rely or shall be deemed to have relied upon any Prior Communications.
19. INDEMNITY. The Company for itself and its successors and assigns hereby
indemnifies the Contractor and agrees to and shall hold the Contractor harmless
of, from and against, and agrees to and shall pay on demand, any and all claims,
costs, damages, demands, expenses, payments, charges, fees, executions, suits,
sums of money, unreimbursed tariffs, repayments, penalties, reimbursements and
judgments whatsoever, including without limitation court costs and attorneys'
fees, whether known or unknown or suspected or unsuspected, for, upon or by
reason of any manner, cause or thing whatsoever in any way or to any extent
directly or indirectly arising from or out of, related to, as a consequence of,
or connected with the use of the Products by the customers.
20. SEVERABILITY. If any provision of this Agreement shall be declared by any
court of competent jurisdiction to be illegal, void or unenforceable, the other
provisions hereof shall not be affected thereby but shall remain in full force
and effect. Furthermore, if any of the restrictions regarding post-termination
activities is found to be unreasonable or invalid, the court before which the
matter is pending shall enforce the restriction to the maximum extent it deems
to be valid and enforceable.
21. WAIVER. Failure of either party hereto to insist upon strict compliance with
any of the terms, covenants and conditions hereof shall not be deemed a waiver
or relinquishment of such terms, covenants and conditions or of any similar
right or power hereunder at any subsequent time.
22. AMENDMENT. This Agreement may not be amended except by a writing executed by
both parties hereto.
23. CONSTRUCTION. Whenever applicable in this Agreement, the singular and the
plural, and the masculine, feminine and neuter shall be freely interchangeable,
as the context requires. The Section headings or titles shall not in any way
control the construction of the language herein, such headings or titles having
been inserted solely for the purpose of simplified reference. Words such as
"herein", "hereof", "hereinafter", "hereby", and "hereinabove" when used in this
Agreement refer to this Agreement as a whole, unless otherwise required by the
context. The Recitals constitute an integral part of this Agreement and are
fully incorporated herein. All Section and subsection references set forth
herein refer to the corresponding Sections and subsections of this Agreement.
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24. VENUE. All actions or proceedings in any way, manner or respect arising out
of or from or related to this Agreement shall be litigated only in courts having
situs within the State of New Jersey, which courts shall have exclusive
jurisdiction over all such actions or proceedings, and all parties and their
transferees hereby consent and submit to the jurisdiction of any local, state or
federal court located within said city and state, and all parties and their
transferees hereby waive any and all rights they may have or obtain to transfer
or change the venue of any litigation brought by any party hereto against any
other party hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day, month and year first above written.
Performance Health Technologies, Inc.
By: /S/ XXXXXX X. XXXXXXXX
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Xxxxxx X. President
President and Chief Executive Officer
Interactive Metronome, Inc.
By: /S/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx
Chief Executive Officer
DATED: February 27, 2007
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