EXCLUSIVE INDEPENDENT REPRESENTATIVE AGREEMENT
This Agreement is entered into and made effective as of December 1,
1997, by and between Medical Science Systems, Inc., a Texas corporation with its
principal offices located in Newport Beach, California, United States ("MSS")
and Medicadent, an French corporation with its principal offices located in
Paris, France ("REPRESENTATIVE").
RECITALS
A. MSS has rights to a certain genetic test for evaluating patients for
predisposition to periodontal disease, hereinafter referred to as "PST", which
MSS desires to have marketed and promoted in France.
B. Representative has expertise in the marketing and promotion of
products in the dental market in France. Representative wishes to act as an
independent representative of MSS for the marketing and promotion of PST in
France. The parties desire to define in this Agreement the terms and conditions
upon which Representative will act as an independent representative of MSS.
NOW, THEREFORE, MSS and Representative agree as follows:
1. DEFINITIONS.
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1.1 "CONFIDENTIAL INFORMATION" means (a) the design, technology and
know-how of PST or of any other service or product of MSS, except insofar as
disclosed by normal use of the product; (b) non-public information concerning
MSS's financing, financial status, research and development, proposed new
services or products, marketing plans and pricing, unless and until publicly
announced; and (c) any information designated by MSS as confidential or
proprietary in writing. "Confidential Information" will not include information
that:
(i) is in or enters the public domain without breach of this
Agreement;
(ii) MSS customarily provides to others without restriction on
disclosure;
(iii) Representative rightfully receives from a third party
without restriction on disclosure and without breach of a nondisclosure
obligation; or
(iv) Representative develops independently without access to
Confidential Information, which Representative can prove with written evidence.
1.2 "EFFECTIVE DATE" means the date this Agreement has been executed by
both parties or the date this Agreement receives any and all required
governmental approvals, whichever is later.
1.3 "INTELLECTUAL PROPERTY RIGHTS" means patent rights, copyright rights
(including, but not limited to, rights in audiovisual works and Moral Rights),
trade secret rights, and any other intellectual property rights recognized by
the law of each applicable jurisdiction.
1.4 "LAUNCH DATE" means the earliest date on which Representative first
begins the promotion or marketing the use of, or the solicitation of orders for,
PST in the Territory, to be no later than October 31, 1998.
1.5 "MARKS" means MSS's trademarks, tradenames, brand names, service
marks, service names, and/or logos, including but not limited to any of the
foregoing under which PST is marketed or promoted.
1.6 "MORAL RIGHTS" means any rights to claim authorship of a work, to
object to or prevent the modification of a work, or to withdraw from circulation
or control the publication or distribution of a work, and any similar right,
existing under the law of any country in the world, or under any treaty.
1.7 "PATIENT" means an individual from which a Sample is collected, upon
which a Test Administration can be performed.
1.8 "SAMPLE" means the sample obtained from a Patient using Sample
Collection Materials and upon which a Test Administration will be performed.
1.9 "SAMPLE COLLECTION MATERIALS" means the packaging, clinical
materials and accompanying instructions to be used to obtain a Sample from a
Patient for delivery to a laboratory upon which a Test Administration can be
performed.
1.10 "TEST ADMINISTRATION" means the performing of the genetic analysis
of a PST by a laboratory based upon a Sample gathered from a Patient using
Sample Collection Materials.
1.11 "TERRITORY" means the territory defined in Exhibit A.
2. APPOINTMENT AS INDEPENDENT REPRESENTATIVE OF MSS.
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2.1 APPOINTMENT. MSS hereby appoints Representative, and Representative
hereby accepts such appointment, as an independent sales representative of MSS
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for the limited purposes of promoting and marketing the use of, and soliciting
orders for, PST in the Territory. Subject to the right of MSS to promote PST to
institutions that may have offices in the Territory as set forth in Section
7.2(b) below, Representative's appointment as an independent sales
representative of MSS shall be exclusive in the Territory during the first two
(2) years after the Launch Date, and shall thereafter remain exclusive so long
as Representative meets the minimum annual sales goals set pursuant to Section
3.4 below.
2.2 NO APPOINTMENT OF SUB-REPRESENTATIVES OR DELEGATION OF DUTIES.
Representative has no right and agrees not to appoint any sub-representatives or
to delegate any of its duties hereunder without the advance written permission
of MSS, which MSS may grant or deny in its sole discretion.
2.3 INDEPENDENT CONTRACTOR. Representative's relationship with MSS
during the term of this Agreement will be that of an independent contractor.
Representative will not have, and will not represent that it has, any authority
to bind MSS, to assume or create any obligation, express or implied, to enter
into any agreements, or to make any warranties or representations, on behalf of
MSS or in MSS's name other than as expressly authorized herein. Nothing
contained herein shall be deemed to create the relationship of
franchisor/franchisee, partnership, or joint venture between the parties, and
neither Representative nor its employees are, or shall act as, employees of MSS.
2.4 SOLICITATION OUTSIDE THE TERRITORY. Representative will not solicit
customers outside the Territory.
3. REPRESENTATIVE'S OBLIGATIONS.
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Representative will be responsible for carrying out the following
activities at its own expense:
3.1 CREATION OF MARKET DEVELOPMENT PLAN. Representative will create,
with the participation of MSS, a detailed written market development plan for
promotion of PST in the Territory.
3.2 SALES EFFORTS. Representative will use its best efforts to (i)
vigorously and aggressively promote and solicit orders for PST in the Territory
and in accordance with the terms and policies of MSS as announced from time to
time; (ii) promptly transmit to MSS all inquiries, complaints and other
important information that Representative obtains from or with respect to PST or
Test Administrations; and (iii) assist customers in placing orders for PST and
promptly transmit such orders to MSS for fulfillment.
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3.3 SALES FORCE REQUIREMENT. Representative will provide a sufficient
sales force to carry out the Sales Effort in France, with a minimum requirement
of 26 sales people located throughout the territory.
3.4 MARKET DEVELOPMENT ACTIVITIES. Representative will engage in
vigorous market development activities in the Territory, including but not
limited to continuing education of Clinicians about PST, local advertising,
distribution of PST marketing materials, development of thought leaders and
early adopters, and conducting studies on PST for sales and marketing purposes.
3.5 ANNUAL SALES GOALS AND MINIMUMS. Annual sales goals and annual
minimum sales requirements for Representative will be set by mutual agreement of
the parties at the beginning of each calendar year (or such other time as the
parties may agree) for the following two (2) year period. Representative will
use its best efforts to meet the annual sales goals and minimums applicable for
each annual period during the term of this Agreement.
3.6 ATTENDANCE AT TRADE SHOWS. Representative will attend and exhibit at
meetings, trade shows and exhibitions in the Territory oriented toward local
attendees that are relevant to PST.
3.7 SPECIALIZED STAFF. Representative will maintain sufficient personnel
(i) to serve the demands and needs for PST in the Territory and (ii) otherwise
to carry out the obligations and responsibilities of Representative under this
Agreement.
3.8 TECHNICAL CAPABILITY. Representative and its staff will have
knowledge of the technical language conventional to PST and similar services in
general, and will develop sufficient knowledge of the industry, of PST and of
services competitive with PST (including specifications, features and benefits)
so as to be able to explain in detail to customers the differences between PST
and competitive products.
3.9 CONDUCT OF BUSINESS. Representative agrees: (i) to conduct its
business in a manner that reflects favorably on PST and the good name, goodwill
and reputation of MSS; (ii) not to engage in deceptive or unethical practices,
including but not limited to disparagement of PST; and (iii) to make no
representations, warranties or guarantees to customers or to the trade with
respect to the specifications, features or capabilities of PST that are
inconsistent with the literature distributed by MSS, including all warranties
and disclaimers.
3.10 MARKET INFORMATION. Representative will provide to MSS quarterly
forecasts for sales of PST in the Territory. Representative will advise Company
promptly concerning any market information that may come to Representative's
attention respecting MSS, PST, MSS's market position, or the continued
competitiveness of PST, complaints, or claims by customers, or other persons
about MSS or PST. Representative will notify MSS in writing promptly of any
opportunity for PST development or distribution within the Territory perceived
by Representative, and MSS and Representative will discuss all such
opportunities.
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3.11 GOVERNMENTAL APPROVAL OF THIS AGREEMENT. If any approval or
registration of this Agreement is required to make this Agreement enforceable in
the Territory, or to comply with exchange regulations or other requirements to
allow remittance abroad of United States dollars hereunder, Representative will
immediately take all required action at its expense. MSS will be under no
obligation to provide PST to Representative's customers hereunder until
Representative has provided MSS with satisfactory evidence that such approval or
registration is not required, or that it has been obtained.
3.12 NO HANDLING OF COMPETITIVE PRODUCTS. Representative agrees that it
will not at any time during the term of this Agreement market, promote, sell, or
otherwise commercially distribute any product that is competitive with PST.
4. MSS'S OBLIGATIONS.
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MSS will be responsible for carrying out the following activities at its
own expense:
4.1 INTERNATIONAL MARKET DEVELOPMENT ACTIVITIES. MSS will engage in the
following international market development activities to help promote PST:
conducting international scientific studies of PST (such as data development,
clinical testing and validity verification); developing marketing materials for
use in the Territory; encouraging persons having international influence to
speak about PST (including working with Clinicians in the Territory who have
influence across Europe); international advertising; attending and exhibiting at
relevant meetings, trade shows and exhibitions oriented toward international or
multi-country attendees (including those taking place in the Territory); and
supporting Representative's sales efforts with training of Representative's
sales personnel, sales tools, and technical support.
4.2 MARKETING MATERIALS MSS will be responsible for the development and
printing of marketing materials and sales tools for the French market.
Representative will provide input on changes that will need to be made to the US
version of the materials to make them appropriate for the local market.
Representative will also provide review of the language translation. The core
images and message will remain consistent worldwide.
4.3 SHIPPING AND HANDLING OF SAMPLES AND SAMPLE COLLECTION MATERIALS;
REPORTING RESULTS OF TEST ADMINISTRATIONS. MSS will be solely responsible for
shipping Sample Collection Materials to customers who have placed orders for
PST, handling of Samples for Test Administrations, and reporting the results of
Test Administrations back to Clinicians or other users of PST. Representative
may also have a stock of Sample Collection Materials for sampling activities and
point of sale opportunities.
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4.4 INVOICING AND COLLECTION. MSS will be solely responsible for
invoicing and collection of payments with respect to orders for PST.
4.5 REGULATORY APPROVAL OF PST. MSS will have responsibility and control
of seeking any required regulatory approval or government licenses required to
market, promote, sell or use PST in the Territory, and Representative will
provide such reasonable assistance to MSS in seeking such approval or licenses
as MSS may request from time to time.
4.6 SELECTION OF BRAND NAMES. MSS will have sole control of the
trademarks, trade names, brand names, service marks and/or service names under
which PST is marketed and promoted.
5. PRICING.
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The current price for a Test Administration to French customers is Two
Hundred and Ten U.S. dollars ($210). MSS and Representative will discuss the
appropriate price, in French Francs, for PST in the French Market and any future
increases or decreases of said price for a Test Administration, provided that
MSS shall have the ultimate authority and responsibility for setting and
adjusting such price in its sole discretion. The price established will not
include promotional pricing plans that the parties may mutually agree to.
Subject to the foregoing, MSS reserves the right to, from time to time in its
sole discretion, establish, change, alter or amend its prices, discount rates,
terms and conditions of sale, warranty, delivery and packaging charges, methods
of payment, and any other matters relating to the sale of PST or Test
Administrations without thereby incurring any obligation or liability to
Representative. MSS shall also have sole authority and responsibility for
setting any amounts to be charged for Sample Collection Materials and any
associated incidental charges, such as shipping and handling.
6. ORDER PROCEDURE AND SHIPMENT.
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6.1 SCOPE OF AUTHORITY. Representative is granted the authority only to
solicit orders for PST for transmittal to MSS. Representative is not authorized
to accept orders on behalf of MSS, or to enter into written or oral contracts of
any nature on behalf of MSS, nor to negotiate such agreements or contracts.
6.2 ACCEPTANCE. No order received from Representative or directly from
any customer will be considered binding unless and until accepted in writing by
MSS or, if no written acceptance is given by MSS, until the order is shipped and
then only as to the portion of such order that is actually shipped.
Representative has no right, power or authority, express or implied, to accept
any order as binding upon MSS, and MSS reserves the absolute right, in its sole
discretion, to reject any order placed through Representative.
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6.3 TERMS AND CONDITIONS. The terms and conditions of this Agreement
will apply to each order accepted or shipped by MSS or its service center
hereunder. The terms of this Agreement will not be amended or changed by the
terms of any purchase order, acknowledgment, invoice or similar document, even
though MSS or its service center may have signed or accepted such documents. All
orders of PST solicited by Representative will be according to MSS's prices,
payment terms and other terms and conditions in effect at the time of the order.
6.4 BILLING. All MSS Products or Services for which orders are accepted
by MSS will be shipped and billed by MSS or its service center directly to the
customer. All invoice payments will be made directly to MSS or its service
center by the customer.
6.5 DELIVERY AND CANCELLATION OF ORDERS. MSS will use reasonable efforts
to meet Representative's or a customer's requested delivery schedules for orders
for PST, but MSS reserves the right to refuse, cancel or delay shipment to a
customer if the customer (i) fails to make any payment, (ii) fails to meet the
credit or financial requirements established by MSS, or (iii) otherwise fails to
comply with the terms and conditions of this Agreement. MSS also reserves the
right to discontinue the distribution of any versions of PST at any time and to
cancel any orders therefor without liability of any kind to Representative or
any other person. No cancellation, refusal or delay for any of the reasons set
forth above will be deemed a termination or breach of this Agreement by MSS.
6.6 ALLOCATION OF THE MSS PRODUCTS. Should orders for PST exceed the
available inventory, MSS or its service center will allocate its available
inventory and make deliveries on a basis MSS or its service center deems
equitable, in its sole discretion.
6.7 PARTIAL SHIPMENTS. MSS or its service center may make partial
shipments to customers on account of orders placed through Representative, to be
separately invoiced.
7. REPRESENTATIVE COMMISSIONS.
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In consideration of the services of Representative under this Agreement,
MSS will pay Representative commissions as set forth below:
7.1 CRITERIA FOR COMMISSIONS. Representative is eligible to receive
commissions only with respect to orders of PST expressly authorized hereunder
that MSS or its service center has accepted and that were placed by customers in
the Territory. In no case will commissions be paid on orders by customers from
whom Representative is not authorized to solicit orders.
7.2 COMMISSION BASIS. As to orders meeting the criteria of Section 7.1,
MSS will pay Representative commissions in accordance with the following terms:
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(a) SALES GENERATED WHOLLY BY REPRESENTATIVE. For orders of PST
placed by non-institutional customers in the territory, MSS will pay
Representative a commission at the Commission Rates set forth in Exhibit
B hereto, calculated as follows
Commission = Applicable Commission Rate x Commission Basis
"COMMISSION BASIS" is defined as the amount invoiced by MSS or MSS's
service center for Test Administrations performed and sold solely as a
result of the sales efforts of Representative. Commission Basis shall
not include any amounts charged for Sample Collection Materials and any
associated separately itemized incidental charges, such as shipping and
handling of Sample Collection Materials, Samples, or the results of Test
Administrations.
(b) SALES TO INSTITUTIONS. Representative acknowledges that MSS
will be promoting use of PST directly to institutions such as managed
care organizations, insurance companies, and government healthcare
organizations. In the event that such an institution to which MSS has
been promoting agrees to cover the cost of, or to mandate the use of,
PST for all patients under its care or covered by its policy, then a
separate commission schedule will be negotiated with respect to revenue
generated from sales to such institutions or reimbursed by such
institutions. Sales made to an institution by Representative without any
participation by MSS will entitle Representative to commissions at the
rates set forth in Section 7.2(a) above.
7.3 TIMING OF PAYMENT. MSS will report and pay commissions earned by
Representative on orders of PST monthly within sixty (60) days after the close
of each month, or within thirty (30) days after the close of each month with
respect to Test Administrations for which the processing fee is paid by the
customer when the Sample is submitted. In the event that MSS is required to xxxx
Patients directly, rather than Clinicians, for Test Administrations, the parties
will re-negotiate in good faith the time frames within which commissions will be
paid based on the expected payment time frames for Patients.
7.4 REFUNDS, BAD DEBT AND THE LIKE. No commission will be due to
Representative, and any commission paid will be refunded by Representative or
offset against other commissions due Representative, with respect to orders of
PST in the event that, and to the extent that: (i) the invoices with respect to
such orders are uncollectable or otherwise become bad debt; (ii) such orders are
rejected or returned in whole or in part, (iii) any portion of the price charged
with respect to such orders becomes subject to adjustment or refund or rebate to
the customer, or (iv) any portion of the price for such orders must be returned
by MSS to the customer in connection with any proceeding, whether voluntary or
involuntary, involving such customer under any bankruptcy, insolvency or
debtor's relief law. MSS may deduct any commission amounts owed pursuant to this
Section 7.4 by Representative to MSS from any commissions owed by MSS to
Representative. Commission adjustments to reflect uncollectable amounts or other
bad debts will be reconciled each six (6) months.
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8. REPORTS
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Within fifteen (15) days of the end of each calendar month,
Representative will provide to MSS's Flagstaff offices a written report
summarizing, for the month immediately preceding the report, Representative's
efforts to promote PST by geographic areas or other categories as MSS may
designate from time to time, the number of Sample Collection Materials
distributed for evaluation at no charge and to whom such materials were
distributed. Representative will promptly notify MSS in writing of any claim or
proceeding involving advertisement or distribution of PST within ten (10) days
after Representative learns of such claim or proceeding. Representative will
report promptly to Company all suspected defects in PST.
9. CONFIDENTIALITY.
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9.1 OBLIGATIONS. Representative agrees:
(i) that it will not disclose to any third party or use, other
than as expressly permitted hereunder, any Confidential Information of MSS;
(ii) that it will not disclose to any third party other than its
attorneys, accountants and other professional advisors the terms of this
Agreement, except as may be necessary to enforce this Agreement; and
(ii) that it will take all reasonable measures to maintain the
confidentiality and to prevent the unauthorized use of all Confidential
Information in its possession or control, which will in no event be less than
the measures it uses to maintain the confidentiality of its own information of
similar importance.
9.2 INJUNCTIVE RELIEF. Representative acknowledges that unauthorized use
or disclosure of the Confidential would cause substantial harm to MSS that could
not be remedied by the payment of damages alone. Accordingly, Representative
agrees that MSS will be entitled to preliminary and permanent injunctive relief
and other equitable relief for any breach of this Section 9.
10. PROPRIETARY RIGHTS.
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10.1 MSS'S OWNERSHIP. MSS is and will remain the sole and exclusive
owner of all Intellectual Property Rights in PST.
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10.2 REPRESENTATIVE'S DUTIES. Representative will use its reasonable
efforts to protect MSS's Intellectual Property Rights in PST and will report
promptly to MSS any infringement of such rights of which Representative becomes
aware.
10.3 THIRD PARTY INFRINGEMENT. MSS reserves the sole and exclusive right
at its discretion to assert claims against third parties for infringement or
misappropriation of its Intellectual Property Rights in PST.
10.4 TRADEMARKS.
(a) If any advertisement or other marketing material used by
Representative makes any statement as to the technical features or capabilities
of PST beyond the information provided to Representative by MSS, Representative
will first obtain the written approval of MSS prior to publishing such
advertisement or material.
(b) Subject to the terms and conditions of this Agreement, MSS
grants Representative a non-exclusive, non-transferable license for the term of
this Agreement to use in Representative's marketing of PST only those Marks of
MSS that MSS has approved for use on or in conjunction with the marketing,
promotion and sale of PST, provided that such use is in accordance with MSS's
trademark usage guidelines then in effect. Such use must reference such Marks as
being owned by MSS. Nothing in this Agreement grants Representative ownership or
any rights in or to use any Marks, except in accordance with this license. The
rights granted to Representative in this license will terminate upon any
termination or expiration of this Agreement. Upon such termination or
expiration, Representative will no longer make any use of any Marks.
Representative has paid no consideration for the use of MSS's Marks and
Representative agrees that it will not at any time (i) claim any interest in any
of MSS's Marks; (ii) register, seek to register, or cause to be registered any
of MSS's Marks, other than in MSS's name and at MSS's specific request; or (iii)
adopt and use any trademark, tradename, brand name, service xxxx, service name,
and/or logo that might be confusingly similar to MSS's trademarks, tradenames,
brand names, service marks, service names or logos. Representative will assist
MSS, if requested and at MSS's expense, to register MSS's trademarks in MSS's
name in the Territory.
11. WARRANTY.
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11.1 POWER AND AUTHORITY. MSS warrants to Representative that it has
sufficient right and authority to grant to Representative all rights that MSS
grants under this Agreement.
11.2 DISCLAIMER OF OTHER WARRANTIES. THE WARRANTIES IN THIS SECTION ARE
IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, AND MSS EXPRESSLY
DISCLAIMS ALL SUCH OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT. MSS DOES NOT MAKE ANY WARRANTIES TO REPRESENTATIVE WITH RESPECT
TO PST OR ANY OTHER PRODUCT OR SERVICE OF MSS OR ITS SERVICE CENTERS.
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12. INDEMNITIES.
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12.1 DISTRIBUTION INDEMNITY. Subject to the terms of Section 12.2,
Representative agrees to indemnify MSS against any third party claims against
MSS for loss, damage, liability, or expense (including but not limited to
attorneys' fees) arising out of any acts or omissions of Representative in
connection with its activities under this Agreement.
12.2 INFRINGEMENT INDEMNITY.
(a) DUTY TO INDEMNIFY AND DEFEND.
(i) Subject to the limitations set forth in Section 13,
MSS will indemnify Representative against, and will defend or settle at MSS's
own expense, any action or other proceeding brought against Representative to
the extent that it is based on a claim that the use of PST as delivered under
this Agreement infringes any copyright, misappropriates any trade secret, or
infringes any patent.
(ii) Subject to the limitations set forth in Section 13,
MSS will pay any and all costs, damages, and expenses (including but not limited
to reasonable attorneys' fees) awarded against Representative in any such action
or proceeding to the extent attributable to any such claim.
(iii) MSS will have no obligation under this Section as to
any action, proceeding, or claim unless: (A) MSS is notified of it promptly; (B)
MSS has sole control of its defense and settlement; and (C) Representative
provides MSS with reasonable assistance in its defense and settlement.
(c) SOLE REMEDY. THE FOREGOING ARE MSS's SOLE AND EXCLUSIVE
OBLIGATIONS, AND REPRESENTATIVE'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO
INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
(d) EXCLUSIONS. MSS will have no obligations under this Section
12.2 with respect to infringement or misappropriation to the extent arising from
(i) modifications to PST that were not authorized by MSS, (ii) PST
specifications requested by Representative, or (iii) the use of PST in
combination with products or processes not provided by MSS.
13. LIMITATIONS OF LIABILITY.
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13.1 TOTAL LIABILITY. MSS'S TOTAL CUMULATIVE LIABILITY TO REPRESENTATIVE
UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND WILL BE LIMITED TO
THE TOTAL PAYMENTS RECEIVED BY MSS, NET OF COMMISSIONS PAID TO REPRESENTATIVE
HEREUNDER, FROM SALES OF PST IN THE TERRITORY RESULTING FROM THE EFFORTS OF
REPRESENTATIVE DURING THE TWENTY-FOUR (24) MONTHS PRECEDING ANY FINAL
ADJUDICATION THAT FIRST RESULTS IN LIABILITY ON THE PART OF MSS TO
REPRESENTATIVE.
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13.2 EXCLUSION OF DAMAGES. IN NO EVENT WILL MSS BE LIABLE TO
REPRESENTATIVE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER
BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR
OTHERWISE, AND WHETHER OR NOT MSS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE.
13.3 FAILURE OF ESSENTIAL PURPOSE. The parties have agreed that the
limitations and exclusions of liability specified in this Section 13 will
survive and apply even if any limited remedy specified in this Agreement is
found to have failed of its essential purpose.
13.4 BASIS OF THE BARGAIN. Representative acknowledges that MSS has set
its prices and entered into this Agreement in reliance upon the limitations of
liability and the disclaimers of warranties and damages set forth herein, and
that the same form an essential basis of the bargain between the parties.
14. TERM AND TERMINATION.
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14.1 TERM. The term of this Agreement will begin on the Effective Date
and will continue for five (5) years from the Launch Date unless it is
terminated earlier in accordance with the provisions hereof. Thereafter, this
Agreement will automatically be renewed for additional one year periods unless
either party notifies the other in writing of its election not to renew this
Agreement at least six (6) months in advance of the automatic renewal date. Each
party acknowledges that the other is not under any obligation to renew this
Agreement.
14.2 EVENTS OF TERMINATION FOR CAUSE. Either party will have the right
to terminate this Agreement if:
(a) the other party breaches any material term or condition of
this Agreement and fails to cure such breach within thirty (30) days after
written notice, PROVIDED, HOWEVER, that MSS shall have no right to terminate
this Agreement based solely on failure by Representative to meet its annual
minimum sales requirements under Section 3.4 during the first two (2) years
after the Launch Date;
(b) the other party becomes the subject of a voluntary petition
in bankruptcy or any voluntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors; or
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(c) the other party becomes the subject of an involuntary
petition in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if such
petition or proceeding is not dismissed within sixty (60) days of filing.
14.3 TERMINATION BY MSS FOR FAILURE TO MEET MINIMUM SALES. Except during
the first two (2) years after the Launch Date, MSS may terminate this Agreement
upon six (6) months written notice to Representative in the event that
Representative fails to meet any applicable annual minimum sales requirements
set pursuant to Section 3.4 above.
14.4 TERMINATION UPON ELECTION OF REPRESENTATIVE. Representative may
terminate this Agreement for any reason at its sole discretion, effective at any
time after the first two (2) years after the Launch Date, by giving MSS at least
one (1) year's advance written notice of such termination.
14.5 COMMISSION RIGHTS ON TERMINATION. Upon termination of this
Agreement, Representative will be entitled to commissions on orders for PST that
satisfy the requirements of this Agreement only if such orders are placed for
shipment and are accepted by MSS prior to the effective date of termination and
only if such orders are shipped within sixty (60) days after such termination
date. Notwithstanding the foregoing, if this Agreement is terminated for cause
by MSS, Representative shall be entitled only to commissions for orders accepted
by MSS and shipped prior to the effective date of termination.
14.6 EFFECT OF TERMINATION.
Upon termination or expiration of this Agreement: (i)
Representative will immediately return to MSS all Sample Collection Materials
and all copies of Confidential Information in its possession or control, and an
officer of Representative will certify to MSS in writing that Representative has
done so; (ii) Representative will immediately cease to use any MSS Xxxx; (iii)
Representative will immediately return all marketing material provided to
Representative by MSS; and (iv) Representative will immediately refund to MSS
any excess commissions due back to MSS pursuant to the provisions of Section 7.
14.7 NO DAMAGES FOR TERMINATION. NEITHER PARTY WILL BE LIABLE TO THE
OTHER FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON
ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH
ITS TERMS. REPRESENTATIVE WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY
COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THIS AGREEMENT UNDER
THE LAW OF THE TERRITORY OR OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED IN THIS
AGREEMENT. Without limiting the generality of the preceding sentence, neither
party will be liable to the other on account of termination or expiration of
this Agreement for reimbursement or damages for the loss of goodwill,
prospective profits or anticipated income, or on account of any expenditures,
investments, leases or commitments made by either party or for any other reason
whatsoever based upon or growing out of such termination or expiration.
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14.8 NONEXCLUSIVE REMEDY. Except as otherwise provided in this
Agreement, the exercise by either party of any remedy under this Agreement will
be without prejudice to its other remedies under this Agreement or otherwise.
14.9 SURVIVAL. The rights and obligations of the parties contained in
Sections 9 (Confidentiality), 10 (Proprietary Rights), 13 (Limitations of
Liability), and 14.6 (Effect of Termination) will survive the termination or
expiration of this Agreement.
15. COMPLIANCE WITH LAW.
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15.1 GENERAL COMPLIANCE. Each party agrees to comply with all applicable
laws, rules, and regulations in connection with its activities under this
Agreement.
15.2 U.S. EXPORT CONTROLS. This Agreement is subject to and conditioned
upon compliance with the U.S. Export Administration Act and the applicable
regulations thereunder (collectively, the "U.S. EXPORT LAWS"), as well as any
other laws of the U.S. affecting the export of technology. Representative agrees
to comply fully with the U.S. Export Laws and to provide MSS with such
documentation, assurances and access to records as may be required to obtain
licenses under the U.S. Export Laws. Representative certifies that neither the
MSS Products, the technical data relating to the MSS Products, nor any direct
product of the MSS Products: (a) are intended to be used for any purposes
prohibited by the U.S. Export Laws, including but not limited to nuclear
proliferation; nor (b) are intended to be shipped or exported either directly or
indirectly to any country to which the U.S. has prohibited shipment.
16. ARBITRATION
-----------
16.1 AGREEMENT TO SUBMIT. Except as provided below, the parties agree to
submit disputes between them relating to this Agreement and its formation,
breach, performance, interpretation and application, to arbitration as follows.
16.2 PROCEDURE. Arbitration will be in London, England under the
Arbitration Rules of the United Nations Commission on International Trade Law
("UNCITRAL"). Within thirty (30) days after either party receives a demand for
arbitration by the other, the parties will agree on a single arbitrator who will
have knowledge of and experience in dealing with the biotechnology industry
and/or products similar to that of PST. In the event that the parties cannot
agree, UNCITRAL will appoint an arbitrator in accordance with its rules, which
arbitrator will have knowledge of and experience in dealing with the
biotechnology industry and/or products similar to that of PST. Unless the
arbitrator finds that exceptional circumstances justify delay, the hearing will
be completed, and an award will be rendered in writing, within forty-five (45)
days after commencement of the hearing. All evidence will be presented to the
arbitrator, and the arbitration will be conducted, in the English language. The
award rendered in arbitration will be final and binding and may be enforced in
any court of competent jurisdiction. The arbitrator shall have the authority to
grant any equitable and legal remedies that would be available in any judicial
proceeding instituted to resolve a disputed matter.
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16.3 DISCOVERY AND EVIDENCE. Either party will have the right to
discovery of evidence, but by the following methods only: requests for
production of documents and depositions of no more than five (5) individuals.
The arbitrator will supervise discovery and may, at the request of either party,
limit discovery by the other or award payment of the costs and expenses of
discovery (including reasonable attorneys' fees) to the requesting party for
good cause shown. All discovery will be completed, and the arbitration hearing
will commence, within ninety (90) days after appointment of the arbitrator, and
the arbitrator will enforce this requirement strictly. Subject to the foregoing,
discovery matters will be governed by the Federal Rules of Civil Procedure as
applicable to civil actions in the United States District Courts.
16.4 EVIDENCE. Each party agrees to supply to the arbitrator in
accordance with a timetable to be established by the arbitrator such materials
as the arbitrator may reasonably require in order to render a decision. Each
party shall supply to the other party hereto copies of any and all materials
which are supplied to the arbitrator concurrently with delivery of such
materials to the arbitrator. In addition, each party shall supply to the other
party at least ten (10) business days prior to the commencement of any hearing
in the arbitration copies of any and all documents which such party intends to
introduce or upon which such party intends to rely in connection with such
hearing, as well as a list of any and all witnesses whose testimony such party
intends to introduce in connection with such hearing. Additional documents or
witnesses may be introduced only if the arbitrator determines that good cause
has been shown. Each party shall also have the right to submit written briefs to
the arbitrator in accordance with a timetable to be established by the
arbitrator. All testimony of witnesses at any arbitration proceeding held
pursuant to these provisions shall be taken under oath. To the extent either
party maintains in good faith that any documents submitted or testimony
introduced in connection with such arbitration contain confidential information
or trade secrets, the parties shall negotiate in good faith in an effort to
reach agreement regarding terms and conditions for keeping such materials and
testimony confidential. If the parties are unable to agree upon such terms, the
arbitrator shall have the right to impose appropriate restrictions to maintain
the confidentiality of any confidential information or trade secrets in
connection with the arbitration.
16.5 BURDEN OF PROOF. For any claim submitted to arbitration, the burden
of proof shall be as it would be if the claim were litigated in a judicial
proceeding in the federal district courts of the State of California.
16.6 PAYMENT OF COSTS. Each party hereby agrees to pay one-half of the
compensation to be paid to the arbitrator in any arbitration under this Section
16 and one-half of the costs of transcripts and other expenses of the
15
arbitration proceedings; provided, however, that the prevailing party in any
arbitration proceeding as determined by the arbitrator shall be entitled to an
award of its direct costs and reasonable expenses of attorneys, accountants and
other professionals incurred in connection with the proceeding (but not
including reimbursement of the compensation paid by such party to the
arbitrator), to be paid by the losing party. In the event of a dispute as to
whether a party qualifies as a prevailing party under this Section 16.6, the
arbitrator shall resolve such dispute and may apportion such costs, fees and
expenses between the parties as the arbitrator deems just and equitable.
16.7 ATTORNEYS' FEES IN RELATED ACTIONS. In the event of any legal
action relating to the arbitration, including any action to stay the
arbitration, to vacate, modify or correct any award or otherwise, the prevailing
party in the action as determined by the court will be entitled to recover from
the other its court costs and reasonable fees and expenses of attorneys,
accountants and other professionals incurred in connection with the action,
including such costs, fees and expenses upon appeal.
16.8 EXCEPTIONS. Neither party will be required to arbitrate any dispute
relating to actual or threatened: (a) unauthorized disclosure of Confidential
Information or (b) violation of MSS's Intellectual Property Rights. Either party
will be entitled to have injunctive, preliminary or other equitable relief, in
addition to damages, including reasonable attorneys' fees and costs, to remedy
any actual or threatened violation of its rights with respect to which
arbitration is not required hereunder.
17. GENERAL.
--------
17.1 ASSIGNMENT. This Agreement will bind and inure to the benefit of
each party's permitted successors and assigns. Representative may not assign
this Agreement, in whole or in part, without MSS's written consent. Any attempt
to assign this Agreement without such consent will be null and void.
17.2 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of California, U.S.A., without regard to
or application of choice of law rules or principles, and excluding the
Convention on Contracts for the International Sale of Goods (CISG).
17.3 SEVERABILITY. If any provision of this Agreement is found invalid
or unenforceable, that provision will be enforced to the maximum extent
permissible, and the other provisions of this Agreement will remain in force.
17.4 FORCE MAJEURE. Except for payments due under this Agreement,
neither party will be responsible for any failure to perform due to causes
beyond its reasonable control (each a "FORCE MAJEURE"), including, but not
limited to, acts of God, war, riot, embargoes, acts of civil or military
authorities, denial of or delays in processing of export license applications,
fire, floods, earthquakes, accidents, strikes, or fuel crises, provided that
such party gives prompt written notice thereof to the other party. The time for
performance will be extended for a period equal to the duration of the Force
Majeure, but in no event longer than sixty (60) days.
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17.5 NOTICES. All notices under this Agreement will be deemed given when
delivered personally, sent by confirmed facsimile transmission, or sent by
certified or registered U.S. mail or nationally-recognized express courier,
return receipt requested, to the address shown below or as may otherwise be
specified by either party to the other in accordance with this section.
17.6 INDEPENDENT CONTRACTORS. The parties to this Agreement are
independent contractors. There is no relationship of partnership, joint venture,
employment, franchise, or agency between the parties. Neither party will have
the power to bind the other or incur obligations on the other's behalf without
the other's prior written consent.
17.7 WAIVER. No failure of either party to exercise or enforce any of
its rights under this Agreement will act as a waiver of such rights.
17.8 ENTIRE AGREEMENT. This Agreement and its exhibits are the complete
and exclusive agreement between the parties with respect to the subject matter
hereof, superseding and replacing any and all prior agreements, communications,
and understandings (both written and oral) regarding such subject matter. This
Agreement may only be modified, or any rights under it waived, by a written
document executed by both parties.
17.9 CHOICE OF LANGUAGE. The original of this Agreement has been written
in English, which shall be the controlling version for purposes of
interpretation and enforcement of this Agreement. Representative waives any
right it may have under the law of Representative's Territory or otherwise to
have this Agreement written in any language other than English.
17.10 PRESS RELEASE. The parties agree to issue a mutually agreeable
joint press release with respect to this Agreement. Each party agrees that it
will not issue a press release with respect to this Agreement until such joint
press release has first been issued.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly-authorized representatives set forth below as of the
Effective Date.
MEDICAL SCIENCE SYSTEMS, INC. MEDICADENT
By:___________________________________ By:____________________________________
Printed Name: Xxxx X. White___________ Printed Name: Pierre Dudognon__________
Title: President and CEO______________ Title: ________________________________
Date of Signature: ___________________ Date of Signature: ____________________
Facsimile: 0-000-000-0000_____________ Facsimile: 011-33-1-41066465___________
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EXHIBIT B
COMMISSION RATES
----------------
BASE COMMISSION
---------------
25% of amounts invoiced for Test Administrations conducted for the first
$1,500,000 of cumulative test revenue.
22% of amounts invoiced for Test Administrations conducted for cumulative test
revenue from $1,500,000 to $4,000,000.
20% of amounts invoiced for Test Administrations conducted for cumulative test
revenue from $4,000,000 to $6,000,000.
18% of amounts invoiced for Test Administrations conducted for cumulative test
revenue over $6,000,000 through the end of the term of the agreement.
INCENTIVE COMMISSION
--------------------
An additional 2%will be paid in each year for meeting or exceeding the sales
goals set forth in paragraph 3.4.
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EXHIBIT A
TERRITORY
---------
French Dental Market to include general dental practitioners and practitioners
of all dental specialties ( e.g. periodontics, endodontics, orthodontics,
pedodontics, oral surgery).
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