Exhibit 10.10
AGREEMENT
This Agreement (the "Agreement") is made effective as of April 1, 2005 by and
between Ivivi Technologies, Inc., a New Jersey corporation with its usual place
of business at 000-X Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 ("Ivivi") and
Global Medical, L.L.C., a Maryland limited liability company, with its usual
place of business at 0000 Xxxx Xxxx Xxxxx, Xxxxx X, Xxxxxxxx, Xxxxxxxx 00000
("Global").
Background
WHEREAS, Ivivi is a medical technology company that is in the business of
developing electrotherapeutic technologies and medical devices for the
non-invasive treatment of pain and edema and for promoting wound healing; and
WHEREAS, Global is a sales and distribution company that provides
clinically trained sales personnel to market, distribute and support medical
device sales and rentals; and
WHEREAS, Global also performs product warehousing, distribution, customer
service, order fulfillment, equipment tracking, billing and collection services
and related activities in connection with the sale, rental and other
distribution of medical devices; and
WHEREAS, Global and Ivivi desire to enter into an arrangement whereby
Global shall provide certain services for Ivivi.
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants and agreements contained herein and intending to be legally bound, the
parties agree as follows:
Terms and Conditions
1. Definitions. For purposes of this Agreement, the following capitalized terms
shall have the following defined meanings:
(a) "Affiliates" means with respect to any Person, any other Person
which directly or indirectly controls, is controlled by or is under common
control with such Person. For purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly or indirectly,
of the power to vote a majority of the securities having voting power for the
election of directors (or other Persons acting in similar capacities) of such
Person or otherwise to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise.
(b) "Ivivi Products" means the SofPulse model 912, SofPulse model
912-M10, Coil Applicators, Foot Applicator and all other medical devices and
products manufactured, distributed, sold or rented by Ivivi at any time.
(c) "Person" means any individual, partnership, joint venture,
corporation, trust, unincorporated organization, government (and any department
or agency thereof) or other entity.
2. Term. The term of this Agreement shall be two (2) years commencing on
________, 2005. The term of this Agreement shall renew for successive terms of
one (1) year each if mutually agreed each such year in writing by the parties.
3. Services to be Performed by Global.
(a) Throughout the term of this Agreement, Global shall use its best
efforts to diligently provide to Ivivi the services ("Services") set forth on
Exhibit A attached hereto and made a part hereof, as the same may be amended
from time to time.
(b) Throughout the term of this Agreement Global shall devote sufficient
resources, time and personnel, and shall use its best efforts, to perform the
Services in a professional manner to the satisfaction of Ivivi. The parties
acknowledge that Global shall be entitled to continue to promote and service its
current business of distributing and selling specialty beds, bariatric beds and
accessories, hospital bed frame systems, intensive care unit beds, and hospital
stretchers, however such continued promotion and service shall not detract in
any manner from Global's performance of the Services hereunder.
(c) In performing the Services hereunder, Global shall at all times be
subject to the overall management and direction of Ivivi on all marketing and
sales of Ivivi Products.
4. Global Personnel.
(a) Throughout the term of this Agreement, no less than nine (9) clinical
salespersons, who shall be full-time employees of Global, shall devote their
full-time best efforts to the performance of the Services described in subparts
1, 2, 3, 11 and 12 of Exhibit A ("Sales Services"). If, as a result of
termination or resignation, less than nine (9) clinical salespersons are
available on a full-time basis to perform the Sales Services, then Global shall
use its best efforts to hire a qualified replacement salesperson(s) as
expeditiously as possible and in the interim, Global shall utilize the services
of its other personnel to assist in the performance of the Services.
(b) At all times (unless and until the Acquisition described in section 8
is consummated or as otherwise described in section 7(b)(ii)) all personnel
performing the Services shall be employees of Global and Global shall have sole
responsibility for the payment of their salaries, withholding of all federal,
state or local income taxes, Social Security taxes, unemployment taxes, and
workers' compensation contributions. All employee benefits of said personnel
(including but not limited to annual vacation leave, sick leave, health and
dental insurance, disability insurance, pension and 401(k) enrollment) shall be
the sole responsibility of Global.
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5. Global's Shared Revenue Agreement.
Simultaneous with the execution of this Agreement, the parties shall
execute the Shared Revenue Agreement attached hereto as Exhibit B which shall
grant Global certain rights (as more fully set forth in said agreement) to rent
or sell the Ivivi Products in the state of Maryland, portions of Northern
Xxxxxxx, and the District of Columbia.
6. Compensation to Global.
As total compensation for the Services provided by Global to Ivivi
under the terms of this Agreement, the parties agree that Ivivi shall pay Global
the following:
(a) $45,000 each month during the term of this Agreement (prorated for
each partial calendar month during the term of the Agreement), payable in
advance on the first day of each month; and
(b) subject to the provisions set forth in section 7(b), an amount equal
to eighteen (18%) percent of the aggregate amount invoiced by Global (net of
taxes, returns and adjustments) on behalf of and in the name of Ivivi, for the
sale or rental of Ivivi Products during the preceding month ("Percentage
Payments"). The Percentage Payments shall be payable by Ivivi to Global on the
15th day of each month with respect to invoices issued during the preceding
month. In the event that payment has not been received by Ivivi with respect to
an invoice included in the calculation of Percentage Payments within ninety (90)
days of the date of invoice ("Bad Debt"), Ivivi may deduct from any future
payments due to Global an amount equal to the amount of Percentage Payments
previously paid to Global with respect to the Bad Debt. In the event that no
further payments are due to Global, then the amount of the deduction shall be
paid back by Global to Ivivi within thirty (30) days of the date an invoice for
same is sent by Ivivi to Global. If such a deduction (or invoice for payment)
has been made and payment on all or a portion of the Bad Debt is subsequently
received by Ivivi, then the amount so received shall be included in the
calculation of Percentage Payments to be paid to Global in the subsequent month.
7. Expenses
(a) Except as specifically set forth herein, Global shall be solely
responsible for the payment of all expenses, including travel-related expenses,
in connection with its performance of the Services. In the event that personnel
of Global performing the Sales Services travel to any locale other than their
assigned sales drivable territory, Ivivi shall reimburse Global (upon receipt of
supporting documentation) for all expenses in connection with such travel,
provided that Global will use its best efforts to control as well as minimize
such expenses. All approved expenses will be reimbursed by Ivivi to Global on a
twice monthly basis.
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(b) Ivivi, in its discretion, may request that Global hire additional
personnel (beyond the amount designated in section 4) to perform the Services.
If such additional personnel are hired then either: (i) Global shall be
responsible for the payment of salaries and all related employee benefits for
said additional personnel and Ivivi shall reimburse Global (on such periodic
basis as mutually agreed at the time by the parties) for said expense; or (ii)
if Global elects not to be responsible for the payment of salaries and all
related employee benefits for said additional personnel the additional hires
shall become employees of Ivivi but their activities shall be managed and
coordinated by Global in accordance with the provisions of this Agreement. If
the additional personnel that are hired become employees of Ivivi the amount of
Percentage Payments (as defined in section 6(a)(ii)) with respect to invoices
from accounts within the territories covered by those additional personnel shall
be reduced to five (5%) percent.
8. Option to Acquire Portion of the Business of Global.
(a) During the 2-year period commencing six (6) months from the date of
the execution of this Agreement and ending thirty (30) months from the date of
the execution of this Agreement, Ivivi shall have the right (but not the
obligation) to purchase some or all of the assets of Global that are utilized in
the performance of the Services (the "Acquisition"). To exercise this option of
Acquisition, Ivivi shall provide to Global a written notice that: (1) identifies
in reasonable detail the assets to be acquired; (2) the anticipated date of
Closing of the Acquisition which will not be less than ninety (90) days after
the date of said written notice; and (3) any other terms and conditions of the
Acquisition. Global shall respond to the aforesaid notice within ten (10)
business days and thereafter the parties shall use their good faith best efforts
to consummate the Acquisition in a timely fashion.
(b) As consideration for the Acquisition:
(i) Ivivi shall assume the on-going salary obligations (exclusive of
previously granted but not yet paid bonuses or other incentive compensation) of
the Global personnel that are performing the Services who will thereafter become
employees of Ivivi; and
(ii) Upon consummation of the Acquisition, as part of the
consideration therefore, Ivivi shall grant to Global an option to purchase
45,000 shares of the common stock of Ivivi. The strike price of these options
shall be $10 per share, or such other lower price that is offered to any other
party at the time of the acquisition. All of these options shall be vested
immediately upon their issuance. In connection with the grant of these options
Global shall be required to sign a Lock-Up Agreement and such other documents
and agreements as required of other grantees of options by Ivivi and/or as
deemed necessary and advisable by Ivivi's board of directors, legal counsel,
financial auditors and underwriters who will be guided by applicable SEC
guidelines and accounting rules.
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9. Grant of Stock Options to Xxxx Xxxxxxxx. Upon execution of this Agreement,
Ivivi shall grant to Xxxx Xxxxxxxx (President of Global) an option to purchase
5,000 shares of the common stock of Ivivi. The strike price of these options
shall be $10 per share. One thousand (1,000) of these options shall vest
immediately upon their grant and the remaining four thousand (4,000) options
shall vest over a five- year period, on the anniversary date of the execution of
this Agreement, in equal eight hundred (800) option increments. Such vesting
shall be contingent upon Xxxx Xxxxxxxx remaining actively involved in the
management of Global and overseeing the performance by Global of its Services
pursuant to this Agreement. In connection with the grant of these options Xxxx
Xxxxxxxx shall be required to sign a Lock-Up Agreement and such other documents
and agreements as required of other grantees of options by Ivivi and/or as
deemed necessary and advisable by Ivivi's board of directors, legal counsel,
financial auditors and underwriters who will be guided by applicable SEC
guidelines and accounting rules. All unvested options shall immediately
terminate, and be thereafter null and void, upon the termination of this
Agreement.
10. Restrictive Covenant and Non-Disparagement
(a) Throughout the term of this Agreement, and for a period of two
(2) years after its termination for any reason, Global, and its shareholders,
officers, directors, and Affiliates, agree that throughout the world they shall
not market, distribute, rent or sell (or be employed by, associated with,
consult to or enter into a joint venture, services, outsourcing, partnership or
other commercial arrangement with any other Person that markets, distributes,
rents or sells) any wound closure device that can reasonably be deemed to be a
competitive product to an Ivivi Product. The foregoing restrictive covenant
shall not apply, however, to the marketing, distribution, rental or sale of
specialty beds, bariatric beds and accessories, hospital bed frame systems,
intensive care unit beds, and hospital stretchers.
(b) Throughout the term of this Agreement, and for a period of five
(5) years after its termination for any reason, Global, and its shareholders,
officers, directors and Affiliates agree that they shall refrain from
disparagement of Ivivi or any of its employees, directors, officers, products,
or services to anyone, including Ivivi employees and any past, present, or
prospective customers of Ivivi, in any manner likely to be harmful to them,
their business, or their business or personal reputations.
(c) Global understands and acknowledges that the provisions of this
section 10 are designed to preserve and are necessary to protect the legitimate
business interests, goodwill and other proprietary interests of Ivivi.
Accordingly, Global hereby acknowledges that any breach or threatened breach of
the provisions of this section will result in irreparable harm and injury and
continuing damage to Ivivi. Global agrees that in the event of a breach or
threatened breach of the provisions of this section, Ivivi shall be entitled to,
without limiting any other remedies which may exist for any breach of this
section and without bond and without the necessity of showing damages, a
temporary restraining order, preliminary injunction and permanent injunction to
enjoin such breach or threatened breach; and recover from Global the reasonable
attorneys' fees and costs incurred by Ivivi in enforcing the provisions of this
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section 10. Global hereby waives the claim or defense that an adequate remedy at
law for such a breach exists. For any time period that Global is in violation of
this restrictive covenant, such time period shall not be included in calculating
the duration of the restrictive covenant set forth in the above section. The
parties also agree that the existence of any claim or cause of action by Global
against Ivivi, whether predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement of the restrictive covenant set forth
herein, but shall be litigated separately. All of Ivivi's Affiliates and all
successors and assigns of Ivivi and all successors and assigns of Ivivi's
Affiliates are express and intended third-party beneficiaries of the restrictive
covenant set forth in this section. The restrictive covenant is intended for the
benefit of, and may be enforced by Ivivi or such Affiliates, successors and
assigns.
11. Termination.
(a) Either party shall have the right to terminate this Agreement if:
(i) The other party fails to pay any amount owed hereunder and such
failure continues for a period of thirty (30) days or more after written notice
from the other party;
(ii) There is a material violation by the other party of any provision of
this Agreement (other than the non-payment of monies) which violation continues
uncured for a period of sixty (60) days or more after written notice to the
other party specifying such violation; or
(iii) The other party makes an assignment for the benefit of creditors,
files a voluntary petition in bankruptcy, is adjudicated insolvent or bankrupt,
a proceeding is filed against said party to declare said party a bankrupt and
said proceeding is not dismissed within thirty (30) days, or said party
commences any proceeding under any reorganization, arrangement, readjustment of
debt or similar law or statute of any jurisdiction.
(b) Upon consummation of the Acquisition, this Agreement shall
automatically terminate.
(c) Upon termination of this Agreement, all amounts due to either party
prior to the date of termination shall be paid in a timely manner according to
the terms of this Agreement and thereafter no further payments shall be
required.
12. Change in Law. Notwithstanding any other provision of this Agreement, if the
governmental agencies (or their representatives) which administer Medicare, any
other payor, or any other federal, state or local government or agency passes,
issues or promulgates any law, rules, regulation, standard or interpretation, or
any court of competent jurisdiction renders any decision or issues any order, at
any time while this Agreement is in effect, which prohibits, restricts, limits
or in any way substantially changes the method or amount of payment for the
Services rendered under this Agreement, or which otherwise significantly affects
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either party's rights or obligations hereunder, either party may give a notice
of intent to amend this Agreement to the satisfaction of both parties, to
compensate for such prohibition, restriction, limitation or change. If this
Agreement is not so amended in writing within fifteen (15) days after said
notice was given, this Agreement shall terminate as of midnight on the fifteenth
(15th) day after said notice was given.
13. Confidentiality. Ivivi and Global shall treat and cause their accountants,
counsel and other representatives ("Representatives") to treat as confidential
all documents and information concerning each other which are furnished in
connection with the transactions contemplated hereby (except to the extent that
such information or documents (i) become generally available to the public other
than as a result of disclosure by the party to whom such information or
documents belongs or pertains, (ii) become lawfully available to the disclosing
party on a non-confidential basis from a third party which is not under an
obligation of confidentiality to the party to whom such information or documents
belongs or pertains, or (iii) consist of information independently developed by
the disclosing party). Ivivi and Global shall not release or disclose such
information or documents to any persons other than their Representatives as
needed in connection with this Agreement. In the event that Ivivi or Global or
their Representatives are requested or required by any federal, state, local or
foreign governmental or regulatory entity (or any department, agency, authority
or political subdivision thereof) to disclose any information, each party must
first provide to the other prompt notice of any such request or requirement so
that the other party may seek an appropriate protective order from a court of
competent jurisdiction. If no such protective order has been obtained and a
party is requested or required to disclose such information, it may disclose
such information, provided that notice of such intended disclosure first is
given to the other party. The provisions of this paragraph 13 shall survive
termination of this Agreement.
14. Independent Contractor. Nothing contained in this Agreement shall be
construed in any manner to constitute the creation of a partnership or a
principal and agent relationship between the parties and the parties shall at
all times be and remain independent contractors with respect to the subject
matter of this Agreement. Any individuals furnished by either party shall be
solely that party's employees or agents and shall remain under its sole and
exclusive direction and control and shall not be considered employees of the
other party for any purpose. Global shall be solely responsible for the payment
or withholding of all federal, state or local income taxes, Social Security
taxes, unemployment taxes, and other taxes arising from Global's compensation
hereunder.
15. Indemnification.
(a) Ivivi shall indemnify and hold Global harmless from and against all claims,
lawsuits, demands, damages, and/or causes of action threatened or asserted
against Global based on, arising out of, or related to the negligence of Ivivi
in performing its duties and responsibilities pursuant to this Agreement or the
breach of any of its duties and responsibilities hereunder.
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(b) Global shall indemnify and hold Ivivi harmless from and against all claims,
lawsuits, demands, damages and/or causes of action threatened or asserted
against Ivivi based on, arising out of, or related to the negligence of Global
in performing its duties and responsibilities pursuant to this Agreement or the
breach of any of its duties and responsibilities hereunder.
16. Insurance
(a) During the term of this Agreement, Ivivi shall maintain at its sole expense
general liability insurance coverage with limits of $1,000,000 per incident and
$2,000,000 in the aggregate. Ivivi shall provide Global with a certificate or
other evidence of such insurance simultaneous with the execution of this
Agreement and shall continue to provide a current certificate or other such
evidence during the term of this Agreement as requested by Global. Such
insurance polices shall name Global as an additional insured as its interests
may appear and shall provide that the insurer shall furnish to Global written
notice no less than ten (10) days prior to any termination, non-renewal, or
material adverse change in such insurance coverages.
(b) During the term of this Agreement, Global shall maintain at its sole expense
the following insurance coverages: general liability insurance coverage with
limits of $1,000,000 per incident and $2,000,000 in the aggregate and $5,000,000
of umbrella coverage. Global shall provide Ivivi with a certificate or other
evidence of such insurance simultaneous with the execution of this Agreement and
shall continue to provide a current certificate or other such evidence during
the term of this Agreement as requested by Ivivi. Such insurance polices shall
name Ivivi as an additional insured as its interests may appear and shall
provide that the insurer shall furnish to Ivivi written notice no less than ten
(10) days prior to any termination, non-renewal, or material adverse change in
such insurance coverage.
17. HIPAA Requirements.
Global agrees to comply with the applicable provisions of the Administrative
Simplification section of the Health Insurance Portability and Accountability
Act of 1996, as codified at 42 U.S.C. ss. 1320d through d-8 ("HIPAA"), and the
requirements of any regulations promulgated thereunder including without
limitation the federal privacy regulations as contained in 45 C.F.R. Part 164
(the "Federal Privacy Regulations") and the federal security standards as
contained in 45 C.F.R. Part 142 (the "Federal Security Regulations"). Global
agrees not to use or further disclose any protected health information, as
defined in ss. 45 C.F.R. 164.504, or individually identifiable health
information, as defined in 42 U.S.C. ss.1320d (collectively, the "Protected
Health Information"), concerning a patient other than as permitted by this
Agreement and the requirements of HIPAA or regulations promulgated under HIPAA
including without limitation the Federal Privacy Regulations and the Federal
Security Regulations. Global will implement appropriate safeguards to prevent
the use or disclosure of a patient's Protected Health Information other than as
provided for by this Agreement. Global will promptly report to Ivivi any use or
disclosure of a patient's Protected Health Information not provided for by this
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Agreement or in violation of HIPAA, the Federal Privacy Regulations, or the
Federal Security Regulations of which Global becomes aware. In the event Global,
with Ivivi's approval, subcontracts with any Person to whom either Global or
Ivivi provides a patient's Protected Health Information, Global shall include
provisions in such agreements whereby the other Person and Global agree to the
same restrictions and conditions that apply to Global with respect to such
patient's Protected Health Information. Global will make its internal practices,
books, and records relating to the use and disclosure of a patient's Protected
Health Information available to the Secretary of Health and Human Services to
the extent required for determining compliance with the Federal Privacy
Regulations and the Federal Security Regulations. Notwithstanding the foregoing,
no attorney-client, accountant-client, or other legal privilege shall be deemed
waived by Ivivi or Global by virtue of this Section.
18. Books, Records and Compliance Requirements
(a) To the extent the requirements of 42 C.F.R. ss. 420.300 et seq. are
applicable to the transactions contemplated by this Agreement, Global agrees to
make available to the Secretary of Health and Human Services ("HHS"), the
Comptroller General of the Government Accounting Office ("GAO") and their
authorized representatives, all contracts, books, documents and records relating
to the nature and extent of costs hereunder until the expiration of four (4)
years after any Services are furnished under this Agreement.
(b) If Global carries out its obligations under this Agreement through a
subcontract worth $10,000 or more over a twelve month period with a "related"
organization, the subcontract will also contain clauses substantially identical
to the above paragraph to permit access by Global, HHS, GAO and their
representatives to the "related" organization's books and records.
(c) Ivivi shall have the right, during normal business hours and with
reasonable advance written notice, to review and photocopy Global's books,
documents and records that pertain directly to the accounts of Ivivi, the fees
payable to Global under this Agreement, or the Services provided by Global
hereunder. The audit may be conducted by Ivivi employees or by an external
auditing firm hired by Ivivi. The cost of audit, including the cost of the
auditors and reasonable cost of copies of books, documents and records shall be
paid by Ivivi.
(d) Global represents and warrants to Ivivi that Global: (i) is not
currently and has never been excluded, debarred, or otherwise ineligible to
participate in any federal health care program as defined in 42 U.S.C. ss.
1320a-7b(f) (the "Federal Healthcare Programs"); (ii) is not convicted of a
criminal offense related to the provision of health care items or services, and
(iii) is not under investigation or otherwise aware of any circumstances which
may result in Global's being excluded from participation in the Federal
Healthcare Programs. This shall be an ongoing representation and warranty during
the term of this Agreement, and Global shall immediately notify Ivivi of any
change in the status of the representations and warranty set forth in this
section. Any breach of this section shall give Ivivi the right to terminate this
Agreement immediately for cause with one (1) day prior written notice.
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19. Assignability. This contract cannot be assigned or transferred by either
party to any other person, corporation, association or entity, in whole or in
part, without the prior written consent of the other.
20. Force Majeure. If a party's obligation to perform any duty hereunder is
rendered impossible of performance or observance due to an event caused by the
elements, an act of God, war, civil disturbance, fire or other casualty, strike
or other labor dispute, and/or governmental rule (collectively, a "Force Majeure
Event"), then said party, for up to three (3) months shall be excused from such
performance or observance; provided, however, that the party so prevented from
complying herewith shall not have caused such Force Majeure Event, shall have
used reasonable diligence to avoid such Force Majeure Event or mitigate its
effects, and shall continue to take all actions within its power to comply as
fully as possible with the terms of this Agreement. Except where the nature of
the Force Majeure Event shall prevent it from doing so, the party affected by
such Force Majeure Event shall notify the other party in writing as promptly as
practicable and in any event within five (5) business days after the occurrence
of such Force Majeure Event and shall in every instance, to the extent
reasonable and lawful under the circumstances, use its best efforts to remove or
remedy such Force Majeure Event with all reasonable dispatch.
21. Amendments. This Agreement may be amended and the provisions hereof may be
waived, provided that such amendment or waiver is set forth in writing and
executed by the party against whom enforcement is sought
22. Notices. All notices, requests, demands and other communications hereunder
shall be deemed to have been duly given upon receipt if delivered in person or
mailed by overnight courier providing confirmation of delivery:
If to Ivivi, to: Ivivi Technologies, Inc.
000-X Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: President
If to Global, to: Global Medical, L.L.C.
0000 Xxxx Xxxx Xxxxx
Xxxxx X
Xxxxxxxx, Xxxxxxxx 00000
Attn: President
with a copy to: Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
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23. Governing Law. This Agreement shall be deemed to have been entered into in
New Jersey and, as such, shall be governed by the laws of the State of New
Jersey. Exclusive jurisdiction with respect to any dispute pursuant to this
Agreement shall be in the federal or state courts in Bergen County, New Jersey.
24. Severability. If any provision of this Agreement shall be determined to be
illegal or unenforceable, the remaining provisions shall remain in full force
and effect.
25. Counterparts Effectiveness. This Agreement may be executed in any number of
counterparts each of which shall be an original, but all of which shall
constitute one and the same agreement.
26. Entire Agreement. This Agreement constitutes the entire Agreement between
the parties with respect to the subject matter hereof and supersedes all other
prior agreements and understandings of the parties hereto, whether oral or
written, with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered on the day and year first above written.
Ivivi Technologies, Inc.
By:
-------------------------------
Global Medical, L.L.C.
By:
-------------------------------
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Exhibit A
Throughout the term of this Agreement, Global shall use its best efforts to
diligently provide the following services to Ivivi:
1) Marketing and Promotion of the Ivivi Products
o In performing this function, Global personnel will utilize
Ivivi business cards and will use telephone lines, mailing
addresses and email addresses dedicated solely to the Ivivi
Product line. o Global agrees that it and its personnel shall
make no representations or warranties of any kind (either in
written or verbal form) regarding the Ivivi Products (or their
use, efficacy or specifications) or Ivivi as an entity except
for those representations and warranties that have been
approved and authorized in advance by Ivivi.
2) Clinical Sales Support of the Ivivi Products
o Under Ivivi's direction, the Global clinical sales staff will
be responsible for: making clinical presentations regarding
the Ivivi Products; developing roadmaps of customer leads and
approaches to various potential clients and customers;
maintaining and enhancing activity with clients and customers
of Ivivi.
3) Management and Support of Ivivi's outside sales force, including its
nationwide network of independent distributors.
4) All required data-gathering and reporting in connection with compliance
with all regulatory requirements that govern Ivivi's manufacture and
distribution of the Ivivi Products, including but not limited to
compliance with FDA requirements.
5) Production of such financial information and reports as Ivivi deems
necessary resulting from the other Services provided by Global pursuant to
the Agreement. The information and reports shall be in such format as the
parties shall mutually agree.
6) Customer service and support regarding the rental, sale and
distribution of the Ivivi Products on a 365 day a year, 24 hour basis.
7) Warehousing, packaging, shipment, delivery, distribution and perpetual
tracking, on a nationwide real-time basis, of all Ivivi Products
throughout the United States and Canada.
8) Biomedical service, preventative maintenance and other
repair/refurbishment of all Ivivi Products on an as needed basis.
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9) Invoicing of all customers (other than insurance companies, home health
care companies and third-party payors (both governmental and
non-governmental) and companies that rent directly to insurance companies,
home health care companies and third-party payors ) regarding the sale and
rental of all Ivivi Products.
o All documentation generated by Global in connection with the
distribution, delivery, sale and rental of the Ivivi Products,
including but not limited to invoices, statements, purchase
orders, inventory control sheets, accounts receivable ledgers,
etc., shall be the sole property of Ivivi and the originals of
same shall be promptly forwarded to Ivivi, with copies (as
needed) retained by Global.
10) Collection of all amounts owed by customers (other than home health
care companies and third-party payors (both governmental and
non-governmental)) regarding the sale and rental of all Ivivi Products.
o All funds collected by Global shall be collected in the name
of Ivivi and on behalf of Ivivi. All funds collected by Global
on behalf of Ivivi will be deposited immediately into either
an account(s) under the direct and sole control of Ivivi or in
a lockbox account under the direct and sole control of Ivivi,
as directed from time to time by Ivivi.
o All accounts receivable and funds collected by Global in
connection with the sale or rental of the Ivivi Products shall
be the sole property of Ivivi and Global shall keep such
accounts receivable and funds free and clear of all liens,
charges, security interests and encumbrances of every kind
except those expressly permitted by Ivivi.
11) In-service training of customers regarding the use of Ivivi Products.
12) Training of caregivers, distributors and other outside sales personnel
regarding the usage of the Ivivi Products.
13) Tracking of all trial evaluations and demonstrations of all Ivivi
Products.
14) Tracking and reporting of all amounts owed to outside sales
representatives and distributors of Ivivi.
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