Exhibit 10.36
EXCLUSIVE DISTRIBUTION AGREEMENT
This AGREEMENT is effective as of August 19, 2002 and is by and between Scantek
Medical Inc., having a place of business at 000 Xxxx Xxxxx, Xxxxx Xxxxxx, Xxx
Xxxxxx 00000, U.S.A represented at this moment by its President, Xx Xxxxxxxx
Xxxxxx Xxxx, an american citizen, with social security # 141/32/7414, living at
00 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxx XX 00000, X.X.X. on one side, from now on
designated "SCANTEK" and, from the other, Compat Comercio Exterior Ltda., a
brazilian commercial company, located at Xx. Xxxxxxxxx Xxxxxxx x(xxxxxx) 000 -
xx. 000 - Xxxxxx - Xxx xx Xxxxxxx, XX, Xxxxxx, registered at CNPJ/MF under
number 02.779.121/000109, represented at this moment by its legal
representatives, Xxxx Xxxxx Xxxxx Menaes Xxxxxxx an brazilian citizen, with ID
#02578643/5 IFP, and CPF # 018.031.957/46 e Xxxxxxxxx Xxxxxx Xxxxxxx, an
brazilian citizen with ID #09031489.9 IFP, and CPF/MF # 000.000.000-00 from now
on designated "COMPANY", with the authorization of SCANTEK MEDICAL DO BRASIL
LTDA, a brazilian commercial company, located at Av. Eng. Xxxxxxxx Xxxxxxxx no.
4.371, 902, Boa Viagem, Recife, Pernambuco, represented at this moment by
Xxxxxxx Estevarn da Silva Filho, with ID number 1.351.955 SSP-PE, from now on
designated "AGENT". The COMPANY designates as its official importer the company
XXXXXXXX DO BRASIL PROD. CIR. LTDA, a brazilian commercial company, located at
Xxx Xxxxx xx Xxxxxx, 000 - Sala 35 - Sao Paulo, SP, Brasil , registered at
CNPJ/MF under number 48.767.628/0001-42, represented at this moment by its legal
representative, Xxxxxxx Xxxxxx Xxxxxxx, a brazilian citizen with ID# 18.205.469
SSI'/SP, and CPF # 000.000.000-00 from now on designated "IMPORTER".
The parties hereto hereby agree as follows:
Article 1. Appointment of Distributor
1.1 SCANTEK hereby appoints COMPANY as its exclusive distributor in
Brazil ("TERRITORY"), except in Bahia, Pernambuco, Maranhao and Ceara,
for the medical product denominated BreastCare, properly patented in
United States of America (n(degree) 4.190.058.624.264.510-K) and
properly registered in US FDA (n(degree) K 832.989-510 K),
1.1.1 In the event of a National Campaign against
Breast Cancer using the product BreastCare, the COMPANY will
be granted the full distributorship in the TERRITORY,
including Bahia, Pernambuco, Maranhao and Ceara.
1.1.2 In the event of a National Campaign against
Breast Cancer using the product BreastCare, the COMPANY must
not be liable of any commission or fee to any company.
1.2 Pursuant to and during the term of this Agreement, including any
extensions thereof, SCANTEK shall not grant to any third party the
right to sell or distribute the BreastCare in the TERRITORY.
Article 2. SCANTEK Responsibilities
2.1 Take the needed actions before the several public and private agencies,
including the registration and license at the Health Ministry, in order
to allow the COMPANY to import the products for present and future
sales.
2.2 Provide every technical material exist to this date, needed to
the marketing of BreastCare in all events scheduled with the media and
public agencies.
2.2.1 The COMPANY will formally communicate SCANTEK the
schedule of the events mentioned on this article at least
fifteen (15) days in advance.
2.3 Present quarterly to the COMPANY a detailed report of the
BreastCare exported to Brazil, indicating quantity, amounts and
shipping dates, purchased by the COMPANY or others, allowing fire
access to the controls in order to allow verification of such reports.
Article 3. COMPANY Responsibilities
3.1 Plan and execute, in a twelve (12) month period, a program of
promotion and marketing of the BreastCare looking forward to start a
National Campaign against Breast Cancer.
3.1.1 Create a Business Plan with in forty-five (45) days
from the signing of this agreement with definite priorities,
activities and objectives, with a Timetable for the execution.
3.2 Maintain contacts with public authorities and civilian
personalities in order to create a desire in the people's opinion to
stimulate the Health Ministry to prioritize the National Program of
Breast Cancer Prevention.
3.2.1 The COMPANY is responsible in one hundred and
twenty (120) days to seek final approval from INCA, for
accepting BreastCare as a screening device for government use.
3.3 Hire consulting and Marketing firms to insure the promotion and
launch of the BreastCare are effected on a professional way, including
the development of propaganda material like catalogs, flyers, etc; that
should be previously approved by SCANTEK.
3.4 Present to SCANTEK a report showing the work realized every ninety (90)
days,
3.5 The COMPANY will be responsible for all expenses needed to the
normal exercise of the distribution here appointed, except for all the
expenses effected by the physicians indicated by SCANTEK as seen on
article 6.1.
Article 4. Distribution of Product
4.1 SCANTEK or its designee shall sell and COMPANY shall purchase
such quantities of BreastCare as COMPANY shall require for sale in the
TERRITORY by placement of orders at the prices and discounts
established by SCANTEK for the TERRITORY.
4.2 COMPANY shall use every reasonable effort to create and maintain
a market for and to increase the sales of BreastCare in the TERRITORY.
COMPANY shall maintain at its expense an organization, deemed by
SCANTEK to be proper and adequate, for continuous sale and distribution
of BreastCare throughout the TERRITORY. COMPANY shall sell, ship and
invoice the BreastCare for its own account.
4.3 By agreement between SCANTEK and COMPANY, SCANTEK will grant the
price of Seven US Dollars (US$7.00) FOB New Jersey per unit when
purchase is made directly by the COMPANY. The price will be reviewed
and renegotiated after the first contract year.
4.4 In the event that COMPANY provides educational, promotional,
technical or other customer services in the TERRITORY, on behalf of
SCANTEK, such as in connection with accounts which may buy directly
from SCANTEK, if any, shall be reported to COMPANY and shall be
credited against the sales goals. In such case, SCANTEK must shall use
a price Eight US Dollars and Seventy Five cents (US$8.75) per unit and
shall pay agent's commission of Twenty percent (20%) to the COMPANY or
its designee, if the amount of values shall be changed in the future it
must be agreed by both parties.
4.4.1 After obtaining the approval from INCA, all sales
effected on Bahia, Pernambuco, Maranhao and Ceara must add up
and count against the SCANTEK and COMPANY Minimum Purchase
Requirements, even though no commission or fee is owed to the
COMPANY
Article 5. Minimum Purchase Requirements
5.1 In order to maintain its rights of distribution under this
Agreement, COMPANY must maintain a minimum specified level of purchases
of BreastCare from SCANTEK (the minimum level of purchases which
COMPANY is required to maintain from time to time is hereinafter call
the "Minimum Purchase Requirement").
5.2 COMPANY acknowledges and agrees that Minimum Purchase
Requirement is an essential term of this Agreement in reliance on which
SCANTEK agreed to enter into this Agreement. COMPANY understands and
agreed that failure to satisfy the Minimum Purchase Requirement for any
reason shall constitute a material breach and just cause for immediate
termination of this Agreement.
5.3 The Minimum Purchase Requirement for each contract year during
this Agreement and each year during any renewal thereof shall be agreed
upon as follows:
5.3.1 The first contract year is divided into two (2)
consecutive six (6) month period, following the INCA approval;
5.3.1.1 During the first six (6) month period, the
minimum purchase order is one hundred thousand
(100,000) BreastCare units. Of this one hundred
thousand (100,000) units, ten thousand (10,000) units
must be purchased at the signing of this agreement
and delivery of the following documents: (a) the
Authenticated Copy of the Brazilian Health Ministry
Registration Certificate (ANVISA), (b) Authenticated
Copy of the Registration Process with the Product
Index Card form to the Trustee (Fiel Depositoro) to
SCANTEK upon the issuance of the Import License in
the name of XXXXXXXX DO BRASIL. The remaining ninety
thousand (90,000) will be ordered after SCANTEK
delivery the following documents: (c) notarized
declaration of the company that retains the right to
import and the Registration Certificate authorizing
the COMPANY to import and distribute the product
BreastCare, (d) Authenticated Copy of the FDA and CE
Approval Letter notarized and consularized and, (e)
six (6) papers about the BreastCare being used in the
United States of America, Europe and Brazil.
requested as needed and paid fifty percent (50%) at
the request and fifty percent (50%) within 60 days.
5.3.1.2 In the event SCANTEK must to present all the
documents within the thirty (30) days from signing.
5.3.1.3 The second six (6) month minimum order is
four hundred thousand (400,000) BreastCare units,
that will be requested as needed and paid fifty
percent (50%) at the request and fifty percent (50%)
within 60 days.
5.3.1.4 The parties have established the Minimum
Purchase Requirement for the second year and the
following years of the Agreement to be one million
(1,000,000) units. For each other year of the
Agreement, if any, and for each renewal year, if this
Agreement is renewed by the parties, the Minimum
Purchase Requirement shall be changed upon agreement
by SCANTEK and COMPANY. If the parties are unable to
agree on the Minimum Purchase Requirement for any
year subsequent to the second year of the Agreement,
then SCANTEK may terminate this Agreement.
Article 6. Technical support
6.1 SCANTEK shall respond to the technical support requests made by
the COMPANY, when requested at least ten (10) business days in advance,
indicating physician apt to present the products at conventions, TV and
Radio appearances and all events promoted by the COMPANY.
Article 7. Payment for Products
7.1 All payments must be by letter of credit or sight draft.
7.2 All amounts due to SCANTEK shall be payable in United States
Dollars pursuant to a wire transfer to SCANTEK's designated bank
account, in each case in an amount sufficient to cover all outstanding
orders placed by COMPANY. Payment for orders placed during the first
ninety (90) days of this Agreement shall be due prior to shipment.
Payment for subsequent orders shall be due fifty percent (50%) at the
request and fifty percent (50%) within 60 days.
7.3 COMPANY shall be responsible for, bear the cost of and pay all
foreign, federal, state or local income taxes, sales taxes, withholding
taxes, excise taxes, use taxes, custom duties or assessments, or other
taxes, charges, duties or assessments, including interest and
penalties, levied or imposed on Distributor's net income.
Article 8. Shipment and Delivery
8.1 SCANTEK will ship the PRODUCTS FOB New Jersey. All costs for
transportation and insurance will be paid by COMPANY.
Article 9. Term, Renewal, Termination and Expiration
9.1 This Agreement and the distributorship hereby created shall
begin upon execution of this Agreement by both parties and shall
continue in effect for a period of five (5) years and shall be
automatically renewed for another five (5) years, unless sooner
terminated as provided herein.
9.2 During the first year of this agreement the COMPANY will make all the
investments for marketing and promotion.
9.3 In the event that the COMPANY shall active a National Campaign
against Breast Cancer using the Breast Care this agreement will be
automatically valid for ten (10) Years.
9.4 Either party may terminate this Agreement with cause upon one
hundred and eighty (180) days' prior written notice to other party.
Upon such notice, this Agreement shall be automatically converted into
a non-exclusive distributor agreement for the duration, of the notice
period.
9.5 COMPANY and SCANTEK have considered the possibility of making
expenditures in the performance of this Agreement and the possibility
of losses and damages resulting to each of them upon termination or
expiration of this Agreement. COMPANY and SCANTEXC enter into this
Agreement with full knowledge of these possibilities and agree as
follows:
9.5.1 Neither COMPANY nor SCANTEK shall be liable to the
other, by reason of termination or expiration of this
Agreement, for compensation, reimbursement or damages on
account of previous efforts to establish the market (except as
dictated by COMPANY'S local laws), the loss of prospective
profits or anticipated sales or on account of expenditures,
investments, leases or commitments in connection with the
business or good will of COMPANY or SCANTEK, or for any other
reason whatsoever.
9.5.2 COMPANY expressly waives the provisions of any law
which, if asserted, would authorize the payment to COMPANY of
any money on account of the termination or expiration of this
Agreement.
Article 10. Governing Law and Arbitration
10.1 All aspects of this Agreement shall be governed by the
substantive laws of The State of New York. All disputes arising in
connection with this Agreement shall be finally settled by arbitration
conducted in accordance with the rules and procedures established by
the international Chamber of Commerce then in force by three (3)
arbitrators appointed in accordance with said rules. The English
language shall be used in any and all arbitral proceedings. The place
of arbitration shall be New Jersey, New York, U.S.A. notwithstanding
the foregoing; SCANTEK shall have the right to seek injunctive relief
and/or bring an action and pursue its available remedies for payment of
amounts owed from COMPANY hereunder before any competent court or
judicial body.
IN WITNESS WHEREOF, the parties have executed this Agreement.
SCANTEK MEDICAL, INC.
KK
By: /s/ Xxxxxxxx Xxxxxx Sagi
Name: Xxxxxxxx Xxxxxx Sagi
Title: President
Date: October 1, 2002
COMPAT COMERCIO EXTERIOR LTDA.
By: /s/ Xxxxxxxxx Xxxxxx Xxxxxxx
Name: Xxxxxxxxx Xxxxxx Xxxxxxx
Title: President
Date: October 1, 2002
SCANTEK MEDICAL DO BRASIL LTDA.
By: /s/ Xxxxxxx Xxxxxxx xx Xxxxx Filho
Name: Xxxxxxx Xxxxxxx xx Xxxxx Filho
Title: President
Date: October 1, 2002
XXXXXXXX DO BRASIL PROD CIR LTDA.
By: /s/ Xxxxxxx Xxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxx Xxxxxxx
Title: President
Date: October 1, 2002
