Exhibit 10.3
BROKERAGE AGREEMENT
THIS AGREEMENT, effective the 1st day of June, 2001, by and between Xxxx
Xxxx, herein called BROKER, and Worldwide Medical Corporation a Delaware
corporation, herein called PRINCIPAL.
WITNESSETH:
WHEREAS, PRINCIPAL is a manufacturer and seller of a complete line of
professional and at home medical and diagnostic products, further referred to as
"products";
WHEREAS, PRINCIPAL desires to contract the services of BROKER in the
Territory, hereinafter described, to negotiate the sales of the Products in
PRINCIPAL's name and for PRINCIPAL's account to wholesale, military &
convenience stores;
WHEREAS, BROKER is desirous to represent and negotiate sales of said
PRINCIPAL's Products in said Territory; NOW, THEREFORE, in consideration of the
promises and covenants and undertakings herein contained,
IT IS MUTUALLY AGREED AS FOLLOWS:
(1) TERRITORY. PRINCIPAL hereby appoints BROKER and BROKER hereby agrees
to act for PRINCIPAL, as its exclusive Representative for negotiations of sales
of the Products subject to the terms, provisions and conditions hereof, to said
located within the territory described as follows:
Within the United States all Convenience Stores including but not limited to
Circle K, Seven Eleven; Military Organizations; and Distributors to include but
not limited to Cardinal, Amerisource, Bergen Brunswig, McKesson, X. Xxxxxx,
Alou, Bindley, D&K, N.A. Buffen, X.X.Xxxxxx, Remo, Valu Merchandisers.
(2) SALES NEGOTIATIONS. All sales negotiations by BROKER for the account
of PRINCIPAL shall be conducted in accordance with such prices, terms and
conditions as are specified by PRINCIPAL.
(3) PURCHASE ORDER CONFIRMATION. All purchase orders taken from Buyers by
BROKER shall be subject to PRINCIPAL's confirmation, and it is understood that
BROKER will not obligate or commit PRINCIPAL to the sale or delivery of Products
without PRINCIPAL's authorization and direction. PRINCIPAL is required to give
BROKER a yes or no confirmation within 48 hours of receiving order.
(4) AGENCY. BROKER is an independent contractor and shall act as Agent of
PRINCIPAL; neither BROKER nor its employees shall be considered employees of
PRINCIPAL; and neither party shall in any event be held liable or accountable
for any obligations incurred by the other party except as specified herein; it
being specifically understood that the respective businesses of each of the
parties shall be operated separate and apart from each other.
(5) APPLICABLE LAW. The laws of the State of California shall govern the
application, interpretation, and enforcement of this Agreement.
(6) TERM/TERMINATION. This Agreement shall continue in full force and
effect from year to year. The PRINCIPAL reserves the right to terminate the
agreement the with 90
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days notice up to S 1,000,000 in sales to said territory. The PRINCIPAL reserves
the right to terminate the agreement with 180 days notice after 1,000,000 in
sales and up to $2,000,000 in sales to said territory. The PRINCIPAL reserves
the right to terminate the agreement with 60 days notice after $2,000,000 in
sales to said territory. The BROKER reserves the right to terminate the
agreement with 60 days notice.
(7) ASSIGNMENT. PRINCIPAL shall have the right to assign this agreement
or any of its rights or privileges to any other party or entity subject to
BROKER's prior written approval. BROKER shall have the right to assign this
agreement or any of its rights or privileges to any other party or entity
subject to PRINCIPAL's prior written approval.
(8) SUB-BROKER. PRINCIPAL reserves the right to approve any sub-broker
agreements for stated territory .
(9) COMMISSION. PRINCIPAL shall pay BROKER, without deduction or offset,
a monthly commission or brokerage based on all "net sales" to said territory
regardless of origin. "Net sales" for purposes of this commission calculation is
defined as gross invoice price less cash discounts, less any free goods invoiced
that are to be "billed back" via a debit or promotional goods invoiced that are
planned to be debited back. Commission payments are to be made promptly within
ten (10) days after the end of each month during which the applicable sale is
collected. Unpaid balance beyond date is accrued interest of 1.5% per month.
THE PRINCIPAL AGREES AS FOLLOWS:
SALES COMMISSION:
A commission on all Worldwide Medical products sold through stated
territory (including existing sales volume) is as follows:
For annual sales of 0 to $2,000,000 at a rate of 7.5%
For annual sales greater than $2,000,000 at a rate of 3.75%
If the PRINCIPAL terminates this agreement without proper cause when
cumulative sales have exceeded $2,000,000 to said territory beginning June 1,
2001, PRINCIPAL agrees to make continuing monthly commission payments to BROKER
at a rate of 3% of sales* for a period of 12 months beyond terminate date.
* Sales are determined by averaging the 6 months before termination.
All remittances of commissions will be mailed to:
Xxxxxxx Xxxx
00000 Xxx Xxxx
Xxxx xx Xxxx, XX 00000
(9) ELIGIBLE BUYERS. PRINCIPAL shall permit BROKER, consistent with the
terms of this Agreement, to negotiate sales to any and all prospective buyers of
PRINCIPAL'S Products throughout the designated Territory.
(10) SHIPMENTS. PRINCIPAL shall ship Products sold as BROKER may specify.
PRINCIPAL shall be given reasonable notice with respect to the required
shipments. PRINCIPAL accepts full responsibility for granting credit to Buyers.
(11) INDEMNIFICATION. If any claim or action is made or filed against
BROKER, claiming loss or injury of any nature whatsoever, as a result of any
defect in the Products or use of the Products, or the infringement by the
PRINCIPAL of any property right belonging to
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another, PRINCIPAL shall defend, hold harmless and indemnify BROKER from any and
all loss and damage, costs and expenses, including legal fees, incurred by it.
(12) PRODUCT LIABILITY INSURANCE. PRINCIPAL shall furnish BROKER with a
current Certificate of Product Liability Insurance upon execution of the
Agreement.
(13) EXPENSES. PRINCIPAL agrees to reimburse BROKER for reasonable
pre-approved travel, entertainment, company account business, presentation
materials and postage.
THE BROKER AGREES AS FOLLOWS:
(14) PRINCIPAL'S INSTRUCTIONS. BROKER shall carry out PRINCIPAL's
instructions with respect to the sales of the Products.
(15) REPORTING PURCHASE ORDERS. BROKER shall promptly submit all purchase
orders for Products for confirmation or approval by PRINCIPAL.
(16) GOOD FAITH SALE. Broker shall use good faith and effort in selling
PRINCIPAL's products in the determined territory.
(17) DUTIES. BROKER will prepare presentations and attend sales
appointments, administer the mailing of samples, prepare new vendor paperwork,
process purchase orders, prepare a quarterly account review, administer in store
reviews, work with accounts to plan coup and special promotions, and assist in
collecting receivables.
(18) ASSISTANCE IN COLLECTIONS. BROKER shall assist PRINCIPAL, when
requested by PRINCIPAL in effecting prompt and full payment by Buyers for all
Products sold and delivered to Buyers. The final determination as to credit and
credit terms to be extended to Buyers shall be made only be PRINCIPAL. BROKER's
agreement to assist in the collection of PRINCIPAL's accounts receivable shall
not be construed as a guaranty of payment of such accounts or give PRINCIPAL the
right to charge BROKER's account with any such sums owed PRINCIPAL by Buyer.
(19) IN STORE REVIEWS. BROKER will hire and compensate any third party
that BROKER deems necessary to conduct in store reviews in BROKER's territory.
BROKER will provide a monthly report or summary information generated by such
third party in store reviews.
(20) DISPUTES: The parties further agree in the event of litigation to
submit and consent to the jurisdiction of the State of California and expressly
agree that venue and jurisdiction for any lawsuit arising from the execution,
performance, enforcement, breach or other aspect related to or arising from this
Agreement shall be solely and exclusively in Orange County, California and that
such venue and jurisdiction is proper for a lawsuit between the parties.
Prevailing party is due court costs and reasonable attorney fees from
non-prevailing party.
(21) If any portion of this contract is voided the overall contract is
still enforceable.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement,
thereunto duly authorized on the day and year above written.
PRINCIPAL:
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By: /s/ Date: 5/01/01
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Xxxxxx XxXxxxx, President
WorldWide Medical Corporation
BROKER:
By: /s/ Date: 4/30/01
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Xxxxxx Xxxx
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