MARKETING AND DISTRIBUTION AGREEMENT
THIS
MARKETING AND DISTRIBUTION AGREEMENT (the “Agreement”) dated this 13th day of
November, 2009 is between MEDICAL ALARM CONCEPTS HOLDINGS Inc., a Nevada
corporation whose address is 0000-X Xxxxxxx Xxxx Xxxx, Xxxxxxxx Xxxxxxx, XX
00000 (hereinafter referred to as "MEDICAL ALARM CONCEPTS") and Adex Media,
Inc., a Delaware corporation, with its headquarters at 000 Xxxxx Xxxxxxxxx Xxxx,
Xxxxx X-000, Xxxxxxxx Xxxx, Xx. 00000 (hereinafter
referred to as “ADEX").
WHEREAS
MEDICAL ALARM CONCEPTS operates a medical alarm (personal emergency response
system) business and provides Medical Alarm Equipment and Medical Alarm
Monitoring Services (as hereinafter defined) to the public;
AND
WHEREAS the parties have agreed that it would be mutually beneficial for MEDICAL
ALARM CONCEPTS to offer and for ADEX to market and promote to customers of ADEX
an opportunity to purchase/lease Medical Alarm Equipment and Medical Alarm
Monitoring Services from MEDICAL ALARM CONCEPTS;
AND
WHEREAS MEDICAL ALARM CONCEPTS and ADEX wish to enter into a Marketing Dealer
Agreement setting out the terms and conditions of their agreement.
The
Product is MEDICAL ALARM CONCEPTS' proprietary two-way medical communication
system with two-way voice pendant, known as MediPendant™. The product is used in
medical emergencies and consists of the Medical Alarm Equipment and Medical
Alarm Monitoring Services package.
RESPONSIBILITIES OF MEDICAL
ALARM CONCEPTS and ADEX:
ADEX
agrees to reasonably utilize any and all of its infrastructure and various forms
of media power to drive traffic and increase sales of the MediPendant™ through
the Internet.
ADEX will
provide MEDICAL ALARM CONCEPTS with, but not limited to:
|
|
-
Management of online media
|
|
|
-
Creation of online ads, landing pages,
etc.
|
|
|
-
Maximization of the marketing effort on a small, incremental basis, and
build from there.
|
|
|
-
Phone order taking and order entry directly into MEDICAL ALARM CONCEPTS
online order system.
|
|
|
-
Creation of incentive programs for ADEX sales personnel (for ‘upselling’
programs, etc.)
|
|
|
-
Utilization of all forms of media to create visibility and drive
sales.
|
|
|
-
Back-up (credit card, fulfillment, customer service, etc) if it ever deems
necessary.
|
MEDICAL
ALARM CONCEPTS WILL provide ADEX with the following:
|
|
·
|
a
$45 per success fee if the sale comes directly from ADEX, (already in
existing contract)
|
|
|
·
|
a
$25 per success fee if the lead comes directly from
ADEX,
|
|
|
·
|
5%
RMR share for all active ADEX-generated customers (already in existing
contract)
|
MEDICAL
ALARM CONCEPTS will also issue ADEX as further consideration
:
|
|
·
|
10%of
fully diluted shares issued in the form of a warrant to purchase shares of
MEDICAL ALARM CONCEPTS’ common stock
(“Warrants”)
|
|
|
·
|
Exercise
price $.02 per share
|
|
|
·
|
Lockup
6 month after vesting
|
|
|
·
|
Cashless
exercise
|
|
|
·
|
Vesting
1\4 at execution of Agreement and the remaining 3/4 every 90
days over a period of 3 quarters.
|
Piggyback Registration Rights:
Unless otherwise registered or saleable under Rule 144, whenever MEDICAL
ALARM CONCEPTS proposes to register any of its common equity securities under
the Securities Act of 1933 (other than a registration statement on Form S-8 or
on Form S-4 or any similar successor forms thereto), whether for its own account
or for the account of one or more stockholders of MEDICAL ALARM CONCEPTS,
MEDICAL ALARM CONCEPTS shall give prompt written notice to ADEX of
its intention to effect such a registration and, shall include in such
registration all shares underlying the Warrant, unless otherwise limited
pursuant to Rule 415.
LIMITATIONS OF
LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR
STRICT LIABILITY OR OTHERWISE), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE,
LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF SUCH PARTY WAS ADVISED OF THE
POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR AN AMOUNT OF DAMAGES GREATER HE TOTAL FEES PAID BY MEDICAL ALARM
CONCEPTS TO ADEX IN THE NINETY (90) DAYS PRIOR TO THE DATE ON WHICH ANY SUCH
CLAIM AROSE.
INDEMNITY. ADEX
will indemnify, defend, and hold harmless MEDICAL ALARM CONCEPTS and its
parents, subsidiaries, affiliates, and successors and each of their respective
directors, officers, agents and employees from and against all claims, actions,
losses, expenses, costs or damages of every nature and kind whatsoever
(including reasonable attorneys’ fees) arising out of or relating to ADEX’S
breach of this Agreement. MEDICAL ALARM CONCEPTS will indemnify, defend, and
hold harmless ADEX and its parents, subsidiaries, affiliates, and successors and
each of their respective directors, officers, agents and employees from and
against all claims, actions, losses, expenses, costs or damages of every nature
and kind whatsoever (including reasonable attorneys’ fees) arising out of or
relating to MEDICAL ALARM CONCEPTS’ breach of this Agreement.
CONFIDENTIALITY. “Confidential
Information” shall mean any and all oral or written information whether or not
marked or identified as confidential, and any and all technical and business
data or information, that is provided by one party to the
other. Neither ADEX nor MEDICAL ALARM CONCEPTS shall disclose or use
the other party's Confidential Information for any purpose other than the
purposes contemplated by this Agreement, unless such disclosure or use is
allowed by written permission of the other
party. Notwithstanding any other provisions hereof, either
party may disclose the other party's Confidential Information to the extent
required by applicable law, but only after three (3) days prior written
notification to the other party of such required disclosure. Upon termination,
cancellation or expiration of this Agreement for any reason, or upon request by
either party, all Confidential Information of the requesting party, together
with any copies thereof, shall be returned to that party or certified
destroyed. ADEX’S Confidential Information shall remain the property
of ADEX, and MEDICAL ALARM CONCEPTS’ Confidential Information shall remain the
property of MEDICAL ALARM CONCEPTS.
ii
REPRESENTATIONS AND WARRANTIES.
Each party represents and warrants that: (i) it has the full corporate or
organizational right, power, and authority to enter into the Agreement and to
perform the acts required of it; (ii) the execution of this Agreement by such
Party, and the performance by such Party of its obligations and duties, do not
and will not violate any agreement to which such Party is a party or by which it
is otherwise bound, or any applicable federal, state or municipal law or
regulation to which it is subject, and it is fully compliant with applicable
privacy laws; and (iii) this Agreement constitutes a valid and binding agreement
enforceable in accordance with its terms. MEDICAL ALARM CONCEPTS further
represents and warrants that no part of its Medical Alarm Equipment, Medical
Alarm Monitoring Services and/or MediPendant™: (a) infringe on any third party's
copyright, patent, trademark, trade secret or other proprietary rights or right
of publicity or privacy; (b) violate any law, statute, ordinance or
regulation.
MISCELLANEOUS. The parties to
this Agreement are independent contractors, and no agency, partnership, joint
venture or employee-employer relationship is intended or created by this
Agreement. This Agreement may be executed in counterparts (including
facsimile), each of which shall be deemed an original, but all of which taken
together shall constitute but one and the same instrument. This
Agreement sets forth the entire agreement of the parties and supersedes any and
all prior oral or written agreements or understandings between the parties as to
the subject matter hereof. Only a writing signed by both parties may
change this Agreement.
GOVERNING LAW - This
Agreement shall be governed by and construed in accordance with the laws of the
state where the defending party maintains its principal place of business
without giving effect to principles of conflicts law.
IN
WITNESS WHEREOF the parties have duly executed this Agreement as at the date and
year first above written.
MEDICAL
ALARM CONCEPTS HOLDINGS, INC.
|
By
|
|
|
|
Xxxxxx
Xxxxxxx, CEO
|
||
|
ADEX
MEDIA, INC.
|
||
|
By
|
|
|
|
Xxxxx
Xxxxxx, CEO
|
||
iii
