PRODUCT DISTRIBUTION AGREEMENT
Exhibit 10.1
This Product Distribution Agreement (“Agreement”), effective as of December 6, 2010 (the “Effective
Date”), is made by and between Xxxxxxxxx Technologies Licensing, LLC, having an office at 0000
Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxx 00000 and its affiliates (“Xxxxxxxxx”), and
Montana Healthcare Solutions PTY Ltd having its principal place of business at 00 Xxxxxxxx Xxxx,
Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx, Xxxxx Xxxxxx (“Montana Health”).
In consideration of the mutual covenants and agreements herein set forth, the parties agree as
follows:
I. RIGHT TO SELL. Xxxxxxxxx has developed a versatile, interactive knowledge management system that
can be displayed on multiple platforms and is intended to improve timeliness and accuracy of
medical diagnostics (hereinafter “RHealth Advisor”). In accordance with this Agreement, Xxxxxxxxx
grants Montana Health the right to sell and market RHealth Advisor license agreements on behalf of
Xxxxxxxxx under the terms of this Agreement listed below.
Xxxxxxxxx agrees to deliver such products necessary for contracts generated by Montana Health.
Montana Health agrees to devote its best efforts to the sale of RHealth Advisor license agreements,
which includes, but is not limited to, (1) providing an adequate, trained sales and technical staff
to promote the sale and support of RHealth Advisor, (2) undertaking promotional campaigns and
canvassing prospective users to stimulate the sales of RHealth Advisor, and (3) generating and
maintaining relationships with prospective and current customers.
II. RIGHT TO EXECUTE AGREEMENTS. Xxxxxxxxx may grant Montana Health the authority to execute
agreements on behalf of Xxxxxxxxx upon completion of the form in Appendix A of this agreement, such
authority not being unreasonably withheld. Any agreements pertaining to Xxxxxxxxx products and
services signed by Montana Health without written approval by Xxxxxxxxx will result in breach of
contract.
III. PROCEEDS OF SALES. Xxxxxxxxx will pay to Montana Health a commission on the sales proceeds
for marketing the RHealth Advisor product and supporting services in cases where Montana Health is
involved in marketing the product and introduces Xxxxxxxxx Health to complete the licensing
arrangement with the customer. The commission rate for each individual sales opportunity will be
added as an addendum to this agreement. Commissions will likewise be paid on second tier sales
generated from referrals of customers from Montana Health and will be added as an addendum to this
agreement. This commission will be paid for sales processed and closed directly by Xxxxxxxxx
resulting from marketing efforts of Montana Health, where Montana Health is not involved in the
delivery or support of the RHealth Advisor product. Licenses of RHealth Advisor engaged through
Montana Health, with their assistance in delivery or support of the product, will not include a
commission but will fall under the direction of Section VIII — Revenue Sharing.
IV. RECORDS. Montana Health and Xxxxxxxxx shall keep accurate records regarding the quantities of
the RHealth Advisor licenses that are sold. Xxxxxxxxx and Montana Health shall have the right to
inspect such records from time to time after providing reasonable notice of such intent to the
other party.
V. DISTRIBUTION RIGHTS Montana Health has the right to represent Xxxxxxxxx in the negotiation and
sale of RHealth Advisor licenses. Montana Health will bring clients to Xxxxxxxxx who will execute
a license agreement with said client or grant Montana Health the authority to execute a license
agreement on Xxxxxxxxx’x behalf upon completion of the form in Appendix A of this agreement.
Montana Health does not have rights to execute license agreements or other legal contracts on
Xxxxxxxxx’x behalf, and can only obtain this right through written authority for each contract.
Xxxxxxxxx has an inherent right to make sales through its own organization as well. If Montana
Health generates a contact that ends in the execution of a contract, commissions will be paid in
accordance with Section VIII of this Agreement. If Xxxxxxxxx generates a sale it can assign the
customer service and support to Montana Health in accordance with Section IX.
VI. SUPPORT Montana Health shall receive the support of Xxxxxxxxx in its efforts to market RHealth
Advisor licenses. Xx. Xxxx Xxxxxxxxx, or if not available, an appropriate substitute, shall make
appearances at key events, attend key meetings, and endorse (through letters, video, audio,
media’s, etc.) Montana Health as Xxxxxxxxx’x partnership organization. Xxxxxxxxx shall support its
business technology systems, deliverance of technology to consumer sector, and expertise in
handling technical questions. Xxxxxxxxx shall provide training on its products and services to
Montana Health and its agents and contractors. Once trained, Montana Health will become a
technical implementation partner with Xxxxxxxxx with the capabilities of training all future
contractors, agents, distribution outlets, etc.
Any costs incurred by Montana Health in the marketing and distribution of the Xxxxxxxxx Technology
are the sole responsibility of Montana Health. Such costs include, but are not limited to, travel,
entertainment, printing and marketing.
Any costs incurred by Xxxxxxxxx in the support of Montana Health, including collateral materials
and travel expenses, will be the sole responsibility of Xxxxxxxxx.
VII. USE OF XXXXXXXXX NAME. Xxxxxxxxx expressly prohibits any direct or indirect use, reference
to, or other employment of its name, trademarks, or trade name exclusively licensed to Xxxxxxxxx,
except as specified in this Agreement or as expressly authorized by Xxxxxxxxx in writing. All
advertising and other promotional material will be submitted to Xxxxxxxxx at least two weeks in
advance and will only be used if Xxxxxxxxx consents thereto, which consent shall not be
unreasonably withheld.
VIII. REVENUE SHARING. Montana Health and Xxxxxxxxx shall share revenues on the sale of RHealth
Advisor licenses for all customers brought to Xxxxxxxxx by Montana Health. Revenue sharing
agreements will be included as an addendum for each sale. The Revenue Share provision is in effect
for license deals with customers actively worked and closed by Montana
Health, and where Montana Health is involved in the delivery and/or support of RHealth Advisor with
the respective customer. Otherwise, the clause in Section III — Proceeds of Sales will govern the
arrangement for commission payment.
IX. CUSTOMER (END-USER) SERVICE AND SUPPORT. For contracts with which Montana Health is to be
responsible for the customer (end-user) support, Montana Health will provide adequate, trained
technical staff to provide first level customer support. If the first level contact is unable to
resolve the customer issue, Montana Health will provide adequate, trained technical staff to
provide second level customer support. If the second level contact is unable to resolve the
customer issue, the matter will be referred to Xxxxxxxxx to resolve the customer issue. For
contracts with which Montana Health provides the first and second level customer support, revenue
share will be split accordingly at the support rate, which will be included in an addendum to this
agreement in accordance with Section VIII.
X. TAXES
| a) | PAYROLL TAXES. Montana Health shall be exclusively liable for, and shall indemnify Xxxxxxxxx against such liability for, all employee payroll taxes and insurance arising out of wages payable to persons employed by Montana Health in connection with the performance of this Agreement. |
| b) | TAXES. Xxxxxxxxx is not liable for any taxes that Montana Health is legally obligated to pay in connection with this Agreement, and all such taxes (including but not limited to net income or gross receipts taxes, franchise taxes, and/or property taxes) will be the financial responsibility of Montana Health. |
XI. DEFAULTS. Either Xxxxxxxxx or Montana Health may terminate this Agreement on written notice if
the other party materially breaches this Agreement and such material breach remains uncured for
forty-five (45) days following written notice of same from the other party.
XII. INDEPENDENCE OF PARTIES. Nothing contained in this Agreement shall be construed to make
Montana Health the agent for Xxxxxxxxx for any purpose, and neither party hereto shall have any
right whatsoever to incur any liabilities or obligations on behalf or binding upon the other party.
Montana Health specifically agrees that it will solicit orders for RHealth Advisor as an
independent contractor in accordance with the terms of this Agreement; and that it will not at any
time represent orally or in writing to any person or corporation or other business entity that it
has any right, power, or authority not expressly granted by this Agreement.
XIII. ARBITRATION. All disputes under this Agreement that cannot be resolved by the parties shall
be submitted to arbitration under the rules and regulations of the American Arbitration
Association. Either party may invoke this paragraph after providing 30 days’ written notice to the
other party. All costs of arbitration shall be divided equally between the parties. Any award may
be enforced by a court of law.
XIV. WARRANTIES. Neither party makes any warranties with respect to the use, sale or other transfer
of RHealth Advisor by the other party or by any third party. In no event xxxx Xxxxxxxxx be liable
for direct, indirect, special, incidental, or consequential damages, that are in any way related to
RHealth Advisor.
XV. TRANSFER OF RIGHTS. This Agreement shall be binding on any successors of the parties. Neither
party shall have the right to assign its interests in this Agreement unless the prior written
consent of the other party is obtained.
XVI. TERMINATION. This Agreement may not be terminated by either party unless there are violations
of the Agreement or either party is not performing its duties as outlined in this document, in
which case termination requires party to provide 45 days written notice to the other party.
XVII. INDEMNITY. Montana Health agrees to hold Xxxxxxxxx free and harmless from any and all claims,
damages, and expenses of every kind or nature whatsoever (a) arising from acts of Montana Health;
or (b) as a direct or indirect consequence of termination of this Agreement in accordance with its
terms.
XVIII. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties with respect
to the subject matter of this Agreement and there are no other promises or conditions in any other
agreement, whether oral or written. This Agreement supersedes any prior written or oral agreements
between the parties with respect to the subject matter of this Agreement.
XIX. AMENDMENT. This Agreement may be modified or amended, if the amendment is made in writing and
is signed by both parties.
XX. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable
for any reason, the remaining provisions shall continue to be valid and enforceable. If a court
finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such
provision it would become valid or enforceable, then such provision shall be deemed to be written,
construed, and enforced as so limited.
XXI. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this
Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently
enforce and compel strict compliance with every provision of this Agreement.
XXII. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Michigan.
[SIGNATURE PAGE FOLLOWS]
[SIGNATURE PAGE]
This Agreement is entered into by the parties as of the Effective Date.
Technology Provider:
Xxxxxxxxx Technologies Licensing, LLC
Xxxxxxxxx Technologies Licensing, LLC
By:
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/s/ Xx. Xxxx Xxxxxxxxx
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| CEO |
Technology Distributor:
Montana Healthcare Solutions PTY Ltd
Montana Healthcare Solutions PTY Ltd
By:
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/s/ Xxxxxx Xxxxx
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APPENDIX A
Montana Health
Letter of Authority to Sign Contract on the Behalf of
Xxxxxxxxx Technologies Licensing, LLC
Letter of Authority to Sign Contract on the Behalf of
Xxxxxxxxx Technologies Licensing, LLC
Customer Name __________
Date __________
Xxxxxxxxx Technologies Licensing, LLC (“Xxxxxxxxx”) hereby provides Xxx Xxxxxxxxxx and Xxxxxx Xxxxx
of Montana Health the authority to sign the above referenced contract on the behalf of Xxxxxxxxx.
The contract as agreed upon is attached to this letter of authority. This letter in no way grants
authority to enter Xxxxxxxxx or any other related entity into any contract not referenced above and
attached to this letter of authority.
Xxxxxxxxx Technologies Licensing, LLC
President |
