DISTRIBUTOR AGREEMENT
Exhibit
10.8
DISTRIBUTOR
AGREEMENT
This
agreement ("Agreement") is entered into this 31st day of July, 2007 between
Early Detect
Inc. ("Early Detect, Inc." or "Supplier" interchangeably), a Nevada corporation
with
the
address of 0000 Xxxxxxxxx Xx. Xxxxxx, XX 00000 and Winwheel Bullion, LLC.
("Winwheel
Bullion" or "Distributor" interchangeably), a Nevada corporation with the
address
of 000 Xxxxxxx, Xxxxxx, XX 00000.
Whereas,
Winwheel Bullion wishes to secure distribution rights from Early Detect Inc.
under
the
terms of the Agreement.
WITNESSETH:
In
consideration of the premises and of the mutual covenants and agreement herein
contained,
the parties mutually agree hereto as follows:
| 1. |
Appointment:
Early
Detect Inc. hereby appoints Winwheel Bullion, during the term of
this Agreement as Distributor of the Products, more specifically
described
in Exhibit
"A" attached to this Agreement and by this reference made a part
hereof,
in the
Territory and Distributor hereby accepts said
appointment:
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| 2. |
Term:
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(a)
The
term
of this Agreement is for six (6) years and six (6) months, commencing
on
the
1st day of September, 2007; (b) Thereafter, this Agreement shall automatically
renew
and
its term continue for successive five year periods thereafter unless
terminated
for cause by either party by written notice sent at least one (1) year prior
to
the
expiration of the term. In the event of such notice, termination shall occur
at
the
expiration of the appropriate period.
(b)
Early
Detect Inc. shall have the right, however, to terminate this Agreement
immediately
by furnishing written notice to Distributor of its election to terminate the
Agreement
for any of the following reasons: (i) the existence of bankruptcy; insolvency,
composition or creditor's arrangement with respect to Distributor; (ii)
Distributor's
acquisition by merger or consolidation with or liquidation into any other
business entity; (iii) failure of Distributor to pay when due any portion of
the
purchase
price for ordered Products; (iv) any breach of this agreement by Distributor
including
failure to maintain product required purchase minimums as will be determined
and mutually agreed upon on an annual basis. In the event Early Detect
Inc.
discontinues the manufacturing or marketing of the Products for any reason
whatsoever,
all rights of Distributor under this Agreement shall automatically and
immediately
expire; or (v) for any other reason constituting cause, the parties may
terminate
the Agreement by mutual written agreement.
(c)
The
provisions for termination as provided are final, and the parties have
considered
the possibility of expenditures necessary for the performance of the terms
of
the
Agreement and the possible loss and damages incident to them in the event of
expiration
or termination. It is expressly agreed that Early Detect Inc. shall not be
liable
to
Distributor for damages in any form by reason of the termination of the
Agreement pursuant to its terms at any time or for any reason. Early Detect
Inc.
agrees
that it will accept purchase orders for transactions inaugurated by Distributor
before termination of this Agreement, (Note:
There is no paragraph ( d)) Early Detect Inc. further agrees that upon any
termination of this Agreement, Distributor may return to Early Detect Inc.
for
credit any
Products which are in fully marketable condition as determined by Early Detect
Inc.
Otherwise, after termination of the Agreement, no compensation or indemnity
will
be
due on account of the activities of the Distributor.
| 3. |
Products.The
Products covered by this Agreement are those identified in Exhibit
A
hereto,
which, by this reference, is incorporated herein, manufactured or
causes
to be manufactured
from time to time by Early Detect Inc. at its facility. Early Detect
Inc.
reserves
the right to add to, to withdraw, or to modify the Products at any
time.
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| 4. |
Territory.Subject
to minimum sales requirement below mentioned in Exhibit B attached
to this Agreement and by this reference made a part hereof, Winwheel
Bullion
shall have the exclusive right to distribute throughout China, South
Korea, Japan,
Taiwan, Philippines, Indonesia, Vietnam, Thailand, Malaysia, Hong
Kong,
India,
Russia, Ukraine, Kazakhstan, Turkey, Israel, South Africa, Ghana,
Togo, Beni, Liberia, Nigeria and Democratic Republic of the Congo.
Furthermore,
for any client'contract brought in by Winwheel Bullion, Winwheel
Bullion
shall have the exclusive sales rights for that client for the life
of the
contract, regardless
of the country of origin of the contract; provided such contract
does not
conflict
with any current Early Detect contracts. This exclusive sales right
explicitly includes
Korean-American and Chinese-American pharmacies, distributors, and
grocers
in the United States.
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| 5. |
Prices.Early
Detect Inc. will annually advise Distributor of its current Distributor
prices
(ex-factory) for the Products and, as deliveries are made, will invoice
Distributor for payment in United States currency, at prices then
prevailing. Insurance,
freight and all other costs of shipment will be paid by Distributor.
Early
Detect
Inc. reserves the right to change Distributor prices with the Distributor
during the
term of this Agreement, and show evidence that the price changes
are
necessary and justified. Any change in prices shall be effective
ninety
(90) days from the date of
written notice of any such change is transmitted to the Distributor.
The
parties will
permit no more then an annual 3%
increase.
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| 6. |
Terms
of Sale.The
terms of sale which shall be applicable to all sales made by Early
Detect
Inc. to the Distributor shall be those in effect on the date of shipment
as published
from time to time and attached hereto as Exhibit C which by reference
is
made
a part of this Agreement. Said terms of sale are subject to change
by
Early Detect
Inc. from time to time. All orders placed pursuant to this Agreement
shall
be subject
to Early Detect Inc. acceptance, in whole or in part, at its home
office,
and to the
terms of sale. Distributor shall bear the risk of loss of all Products
sold hereunder
from the time Early Detect Inc. delivers the Products to the carrier
for
shipment
to Distributor. Distributor shall inspect all Products immediately
after
receipt
and shall report to Early Detect Inc. within thirty (30) days any
defect
or discrepancy.
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All
losses from failure
to so
report
shall be borne by the Distributor, and Distributor hereby
waives all claims with respect to such losses. To the extent that any published
terms
of
sale conflict with the provisions of this Agreement, the provisions hereof
shall
govern.
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| 7. |
Force
Majeure.(a)
Failure of Early Detect Inc. to make, or of Distributor to take,
any
one or more deliveries hereunder (or portions thereof) when due,
if such
failure is occasioned by force majeure, shall not subject the failing
party to any liability to the
other, and, at the option of either party, the total quantity to
be
delivered pursuant to
any offer accepted hereunder shall be reduced by the quantity of
the
delivery of deliveries (or portions thereof) so omitted. Force majeure
shall include, but not be limited
to, acts of God or the public enemy, fire, explosion, perils of the
sea,
flood, drought, war, riots, sabotage, accident, embargo, lack of
raw
materials, government priority,
requisition of allocation of any government authority, interruption
f or
delay in
transportation, shortage or failure of supply of materials or equipment,
strikes, lockouts
or other labor troubles, partial or complete suspension of Early
Detect
Inc. or
its suppliers' plant operations or by either party's (including Early
Detect Inc. suppliers) compliance with any order or request of the
State
of California, or the State
of Nevada, the U.S government, and the governmental regulations of
the
market
territory to which Distributor may be subject, or of any officer,
department agency
or committee or any of said governments, or by compliance with a
request
of Early
Detect Inc. or Distributor by any of said governments for purposes
of
national defense,
or any other circumstances of like or different character beyond
the
reasonable
control of the party so failing. Force majeure shall not include
financial
incapacity
of either party. The provisions of this subparagraph (a) shall be
effective even
though the circumstances or contingencies invoked by Early Detect
Inc. or
Distributor
might have been operative on the date
hereof
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(b)
If
any event of force majeure causes interruption of all shipments hereunder for
a
period
of
one (1) year from date the happening of any said event occurs or commences,
this Agreement shall terminate without further obligation of any kind of
either
party to the other.
| 8. |
Taxes
and Penalties.If
any taxes, assessments, penalties or fines be incurred by Early
Detect Inc. by reason of Distributor's conduct of its business,
Distributor will assume
all such obligations without recourse against Early Detect Inc. and
will
indemnify,
exonerate and hold harmless Early Detect Inc. from and against any
loss
by
reason thereof
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| 9. |
Compensation.Compensation
and profits, if any, of Distributor hereunder shall be realized
from margins obtained on resale of the Products, and Distributor
expressly
waives
any claim on or against Early Detect Inc. based on unjust enrichment
of
Early Detect
Inc. or similar theories, for any services rendered by Distributor
under
this Agreement.
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| 10. |
Duties
of Distributor.Distributor
shall use its best efforts to develop and exploit markets
for and to sell the Products throughout the Territory and to that
end
Distributor
shall:
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(a)
obtain at its expense, all necessary licenses, certifications, authorizations
and approvals,
and to do any other or additional act or thing which may be necessary to
enable
the Products to be marketed commercially in compliance with the laws of any
national
or local government having jurisdiction over Distributor or its activities
in
the
Territory, and the regulations of any department, commission, board, bureau,
agency
or
instrumentality of any such government. If such licenses, certifications,
authorizations,
approvals, acts or things have not been obtained, this Agreement shall
not
be
binding on Early Detect Inc., and all risks therefrom shall be with the
Distributor;
3
(b)
comply with all laws and regulations of the Territory, including those dealing
with
the
sale and distribution of the Products purchased thereunder;
(c)
except as specified in EXHIBIT A, resell the Products only under the labels,
trade
names, copyrights or trademarks of Early Detect Inc. or its suppliers, and
none
of
these
nor the packaging, nor the contents thereof, shall be altered in any respect
without
prior written permission of Early Detect Inc. Distributor shall not have or
acquire
any right, title or interest of any kind in such labels, trade names, copyrights
or
trademarks, even though such labels, trade names, copyrights or trademarks
may
have
been
adopted at the suggestion or instances of Distributor; nor shall it do any
act
or
thing which might injure the reputation of Early Detect Inc. or its suppliers'
labels,
trade names, copyrights or trademarks, or affect adversely their exclusive
rights
therein. Distributor will give prompt notice in writing to Early Detect Inc.
of
any
infringement of any such labels, trade names, copyrights or trademarks, or
of
any patents
pertaining to the Products, which shall come to the attention of Distributor,
and,
upon
request of Early Detect Inc., will render to Early Detect Inc., entirely at
Early
Detect Inc. expense, such assistance as Early Detect Inc. may request for the
purposes
of restraining any such infringement;
(d)
except
as
specified in EXHIBIT A, not manufacture or cause to be manufactured anywhere,
or sell, promote or distribute in the Territory, any product like or similar
to
the
Products without prior written approval of Early Detect Inc.:
(e)
except
as
specified in EXHIBIT A, make no appointments of sub distributors, sub
dealers
or agents of the Products except upon terms additionally approved by Early
Detect
Inc.;
(f)
except
upon prior written approval of Early Detect Inc., not sell, transfer or
otherwise
make available the Products for delivery outside the Territory, nor sell,
transfer or otherwise make available the Products to any person whom Distributor
knows
intends to sell, transfer or otherwise make available the Products for delivery
outside
the Territory;
(g)
sell
the
Products only under conditions specified by Early Detect Inc.
(h)
maintain
and store the Products only as specified by Early Detect Inc.
| 11. |
Required
Purchases.Distributor
shall order and purchase the number of Product units
set forth in the table contained in Exhibit B and in accordance with
the
schedule to be mutually agreed upon, which by reference thereto,
will be
made an integral part of
this Agreement. However, the obligation of the Distributor to order
and
purchase any
said units may at the option of the Distributor be decreased by the
number
of Product
units ordered pursuant to this agreement which Early Detect Inc.
is unable
to deliver
during the immediately preceding
year.
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| 12. |
Warranties
of Products.
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4
(a)
Early
Detect Inc. warrants that at the time of manufacture, reasonable care was
used
in
the manufacture of Products, and that the Products are manufactured under
GMP
Compliance. There are no warranties of any kind, which extend beyond the face
of
this Agreement. Distributor acknowledges that, prior to entering into this
Agreement,
it has examined a sample or model of each of the Products as fully as it
desires.
Distributor shall have an obligation to examine fully, prior to purchase, any
of
the
products to which modifications may be made. All Products shipped to
Distributor
hereunder will conform in all material respects to the sample or models
of
the
Products examined by Distributor and will be adequately contained, packaged
and
labeled. Distributor shall not publish, without the prior written approval
of
Early Detect
Inc., any description, perfoimance, claim, specification or other statement
which
relates to the Products other than those set forth in writing by Early Detect
Inc.
(b)
Notwithstanding
any provisions of this Agreement, Supplier warrants to Distributor
that the Products purchased hereunder shall he free from defects in materials
and workmanship and shall conform in all material respect to the Specifications
for a period of ninety (90) days from the date of delivery thereof, provided
that the Product in question has been stored and used in accordance with
ordinary
industry practices and conditions.
(c)
Remedies.
In the event that a Product does not comply with the product warranty
set
out
in Paragraph 12(b) and such non-conforming Product is returned to Supplier
within
the warranty period by Distributor freight prepaid, Supplier will replace such
non-conforming
Product at no additional charge to Distributor; the replaced Product
will
be
returned to Distributor, freight prepaid.
(d)
Limitation
of Liability. Distributor shall in no event be liable for any indirect,
incidental,
special or consequential damages arising out of or relating to the sale or
use
of
its products, whether or not supplier has advance notice of the possibility
of
such
damages.
| 13. |
Trade
Secrets.The
design and related technology of the Products, commercial information,
data regarding processes and know-how furnished Distributor hereunder
or
in connection herewith are the property of Early Detect Inc., and
Distributor shall not
acquire any proprietary rights or other interests therein. Distributor
shall treat same
as strictly confidential, and will not reveal to unauthorized third
parties except as may be necessary, upon prior written approval of
Early
Detect Inc., to achieve the purposes
of this Agreement. Distributor agrees to take all reasonable measures
to
prevent
its employees, agents and customers from divulging such information,
including,
without limitation, causing such employees, agents and customers
to
execute
trade secrets and secret processes nondisclosure agreements in such
form
and substance
as may be required by Early Detect Inc. Distributor hereby acknowledges
that
the disclosure of confidential information may result in substantial
and
incalculable
financial damage to Early Detect Inc. and hereby consents to the
issue of
an
injunction or interim injunction restraining it from the disclosure
of
information which is confidential. Confidential Information shall
not
include information which (a)
is
or becomes generally known within the Early Detect's industry through
no
fault of
Winwheel Bullion; (b) that can be demonstrated to have been in Winwheel
Bullion's
possession or readily available to Winwheel Bullion or its subsidiaries
from another source prior to the disclosure; (c) that becomes part
of the
public domain
or publicly known by publication or otherwise, not due to any unauthorized
act
by Winwheel Bullion; or (d) is required to be disclosed by a governmental
authority
or by order of a court of competent jurisdiction and reasonable advance
notice
is given to Early Detect.
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| 14. |
Indemnification.Supplier
shall indemnify, hold harmless and defend Distributor against
any action brought against Distributor to the extent that such action
is
based on
a claim that any unmodified Product, when used in accordance with
this
Agreement,
infringes a United States copyright or patent and Supplier shall
pay all
costs,
settlements and damages finally awarded; provided, that Distributor
promptly notifies
Supplier in writing of any claim, gives Supplier sole control of
the
defense and
settlement thereof and provides all reasonable assistance in connection
therewith. If
any Product is finally adjudged to so infringe, or in Supplier's
opinion
is likely to become
the subject of such a claim, Supplier shall, at its option, either:
(i)
procure for Distributor
the right to continue using and distributing the Product (ii) modify
or
replace
the Product to make it noninfringing, or (iii) refund the price paid
upon
return of
the Product. Supplier shall have no liability regarding any claim
arising
out of: (i) use
of other than a current, unaltered release of the Product unless
the
infringing portion
is also in the then current, unaltered release, (ii) use of the Product
in
combination
with non-Supplier products, data or equipment if the infringement
was
caused
by such use or combination, (iii) any modification or derivation
of the
products
not specifically authorized in writing by Supplier or (iv) use of
third
party products.
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| 15. |
Early
Detect Inc. Assistance.Early
Detect Inc. agrees to provide distributor with such
technical data and documentation as may be required by governmental
agencies as
a prerequisite to granting licenses, certification and approvals.
Early
Detect Inc. agrees
to make direct, personal representations to governmental agencies
if
necessary.
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| 16. |
Status
of the Xxxxxxx.Xx
is understood and agreed that both parties hereto are independent
contractors and nothing in this Agreement shall be construed so as
to
constitute
Distributor as partner, or legal representative of Early Detect Inc.
or
make it
in any way subordinate to or dependent upon Early Detect Inc. Distributor
has no right
or authority, expressed or implied, to assume or create any obligation
on
behalf of
Early Detect Inc. or represent to any third party that it has authority
to
bind or commit
Early Detect Inc. in any manner.
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| 16. |
Insurance:
Early Detect, Inc. or its associates through the term of
this agreement, agree to
carry, keep in force, and upon request, provide evidence of product
liability insurance
(with an acceptable deductible) through self insurance or a combination
of
self
insurance and a commercially placed insurance carrier in an amount
to be
determined
at a later date and which is customary in each
country.
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| 17. |
Governing
Law.This
Agreement shall in all respects be governed by and construed in
accordance with the laws of the State of California, U.S.
A.
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6
| 18. |
Arbitration.All
disputes between the parties arising in connection with this Agreement
shall be finally settled by arbitration. The arbitration shall
be held in
the Orange County Court, State of California, USA. Judgment upon
the award
rendered may be entered in any court having jurisdiction or application
may be made to such court
for judicial acceptance of the award and an order of enforcement,
as the
case may
be.
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| 19. |
Assignment.Any
and all right accruing hereunder to Distributor is personal in nature
and
shall not be assigned by Distributor, either in whole or in part,
except
with prior written
consent of Early Detect Inc. Withholding of consent shall not be
unreasonable.
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| 20. |
Notices.All
notices provided for herein shall be in writing and shall be deemed
to
have
been duly given when hand delivered or sent by mail, registered or
certified, postage
prepaid, addressed to the parties as follows
to:
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|
Early
Detect Inc.
0000
Xxxxxxxxx Xx Xxxxx 000
Xxxxxx,
XX 00000
Xxxx
Xxxxx, Xx.
Chairman
Winwheel
Bullion, LLC.
00000
Xxxx Xxxxxx
Xxxxxx,
XX 00000
XX
Xxx
Winwheel
Bullion, LLC.
CEO
000
Xxxxxxx
Xxxxxx,
XX 00000-0000
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| 21. |
Sole
Agreement.This
agreement contains all the understandings and representations between
the partners hereto pertaining to the matters referred to herein
and
supersedes
all agreements, of any, previously entered into by them with respect
thereto.
By acceptance of this Agreement, Distributor specifically hereby
releases
Early
Detect Inc. from any and all obligations or claims under any and
all
agreements,
understandings and representations, written or oral, previously entered
into
with Distributor, and any agreements entered into are hereby deemed
terminated and
of no effect in any particular. This Agreement may be modified only
by a
written
supplement duly executed by the authorized officers of the
parties.
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| 22. |
Xxxxxx.Xx
waiver or breach of any term or condition of this Agreement shall
operate
as a waiver of any other breach of such term or condition, or of
any other
term
or condition, nor shall any failure to enforce any provisions hereunder
operate as
a waiver of such provision or any other provision
hereunder.
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| 23. |
Xxxxxxxxxxxx.Xx
case any one or more of the provisions contained in this Agreement
shall
for any reason be held to be invalid, illegal or unenforceable in
any
respect, except in those instances where removal or elimination of
such
invalid, illegal, or unenforceable
provision or provisions would result in a failure of consideration
under
this
Agreement, such invalidity, illegality or unenforceability shall
not
effect any other provision hereof, and this Agreement shall be construed
as if such invalid, illegal
or unenforceable provisions had never been contained
herein.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
on
date
first above written by their duly authorized officers or
representatives.
| BY: /s/ Xxxxxxx Xxxxxxx | BY: /s/ Xxxxxxx Xxx |
| Xxxxxxx Xxxxxxx, CEO/President | Xxxxxxx Xxx, CEO |
| Early DETECT, Inc. | Winwheel Bullion, LLC. |
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EXHIBIT
A
SEE
ATTACHED PRICE LIST AND PRODUCT LIST MARKED
"EXHIBIT
A"
EXHIBIT
B
MINIMUM
PURCHASE REQUIREMENTS
To
maintain the distribution rights to sell the products shown in Exhibit A, a
mutually agreed
upon forecast shall he added to this agreement at a later date. A minimum of
$60
million
of sales per year for the 18 months and $90 million per year for every year
after for
the
right to he a distributor, this must meet the forecasted minimums.
The
$60
million is a guarantee of purchases from EarIyDETECT over the first 18
months.
EXHIBIT
C
TERMS
OF SALE
All
sales
are F.O.B. Orange County, California. USA
8
