MARKETING AGREEMENT
THIS MARKETING AGREEMENT ("Agreement") is entered into effective as of the (21)
day of February 2006, by and between Trillennium Medical Imaging, Inc. a wholly
owned subsidiary of Wellstar International, Inc., a Nevada Corporation having
its principal place of business in Ohio, ("Licensor") and Xxxxx Xxxxx,
President, Allevia Medical, ("Rep.").
WITNESSETH:
WHEREAS, Licensor holds the exclusive rights to certain advanced, FDA approved
thermal imaging cameras, related software and equipment, (the "Trillennium
System") and has the ability to provide related training services, all as
further specified herein (the "Trillennium Services"); and
WHEREAS, the Trillennium System incorporates certain patents, patent pending
applications, proprietary inventions, know-how, and other Confidential
Information (the "Licensed Technology"); and
WHEREAS, Rep. has existing or seeks to develop relationships with certain pain
clinics, imaging clinics, wound care facilities, hospitals, nursing homes,
nursing home management companies, ambulatory care facilities and other
healthcare providers in which Rep. believes it will be beneficial to utilize the
Trillennium System; and
WHEREAS, Licensor desires to appoint Rep. as its non-exclusive Marketing
Representative for the purpose of assisting Licensor in expanding its
Trillennium Services client base, it is
NOW, THEREFORE, AGREED, in consideration of the mutual promises set forth below
and other good and valuable consideration, the receipt and sufficiency of which
all parties hereto hereby acknowledge, as follows:
1. Recitals. The above recitals are true and correct and are fully
incorporated into the body of this Agreement as if fully rewritten herein.
2. Definitions.
a. "Commencement Date" means the date upon which Rep. places its first
order for Thermal Imaging Systems in accord with the terms and
conditions hereof.
b. "Confidential Information" means and collectively includes all secret
and confidential Technical Information, as hereinafter defined,
including all specifications, data, drawings, explicated know-how and
experience, trade secrets, software, databases, proprietary
information and any documents owned by Licensor which pertain to the
Thermal Imaging Cameras and/or is used in the Trillennium Services,
including but not limited to the Licensed Technology, to the extent
that such information: (i) was not known to the recipient; (ii) was
not disclosed in published literature; (iii) was not generally
available in the industry; and/or (iv) has not been divulged to the
recipient by a third party.
c. "Licensed Rights" means and includes the right to obtain and use the
Trillennium System in Rep.'s present or future pain and/or imaging
clinics or such other entities with which Rep. shall successfully
arrange a License Agreement for the use of the Trillennium System.
d. "Technical Information" means unpublished research and development
information, market and business information, patented inventions,
patent applications, know-how, trade secrets, manufacturing
information, computer programs and computer design programs, technical
data and management or supervisory know-how in the possession of
Licensor as of the Commencement Date, or as subsequently acquired,
developed, produced or otherwise available to the Licensor following
the Commencement Date and throughout the term of this Agreement.
3. Enhancements.
a. Licensor shall promptly notify Rep. of any and all enhancements or
improvements (hereinafter all included in the term "Enhancements")
relating to the Trillennium Services, including but not limited to the
Trillennium System and/or Licensed Rights which are hereafter
developed by the Licensor, and Rep. shall have the right to market all
such Enhancements, subject to such reasonable fees for such
Enhancements as Licensor may, in its sole discretion, deem
appropriate, as though originally included in the grant of rights
hereunder.
b. Rep. agrees that it will notify Licensor of any Enhancements it
develops or discovers. Rep. hereby grants to Licensor the right to
unencumbered use and to secure patent rights in such Enhancements
developed by Rep. as part of the consideration received by Rep. from
Licensor for the right to market the Trillennium Services as provided
for herein.
4. Repair and Maintenance. Rep. agrees to immediately notify Licensor of any
defects in any equipment or other materials provided by Licensor pursuant
to the terms of this Agreement. Any repairs and/or replacements
necessitated by the negligence and/or intentional acts of Rep., Rep.'s
employees, agents, contractors or other invitees shall be made at Rep.'s
sole expense. 5. Nondisclosure of Confidential Information.
a. All Confidential Information and/or materials made available by
Licensor to Rep. hereunder shall remain so until such time, if ever,
as the material is no longer confidential through no action, inaction
or fault of Rep. and shall be kept and maintained as confidential and
shall not be disclosed by Rep. to any third party unless such
information and/or materials are published or enter the public domain.
b. For the purposes of compliance with the privacy provisions of the
Health Insurance Portability and Accountability Act of 1996 (HIPAA),
Rep. and Licensor's relationship with each other are as "Covered
Entities." As used hereunder, the terms "Covered Entity", "Protected
Health Information", "use" and "disclosure" shall have the meanings
ascribed to them in 42 CFR Section 164.501.
c. Rep. and the Licensor each agree to conduct their respective business
in accordance with all applicable laws and regulations, including
HIPAA and the regulations promulgated thereunder.
6. Marketing Rights and Obligations.
a. Licensor appoints Rep. as its non-exclusive Marketing Representative
for the purpose of facilitating Trillennium System installations and
License arrangements (each an "Arrangement" and collectively
"Arrangements") between Licensor and such third parties (each a
"Prospect" and collectively "Prospects") that (a) are introduced to
Licensor by Rep. and/or its agents and/or representatives during the
Term (defined below) hereof and (b) with whom Licensor does not have a
pre-existing relationship (whether business or personal) with such
Prospect or its representatives (as evidenced by the records of
Licensor) (a "Pre-existing Relationship"). If a Pre-existing
Relationship is in place Licensor will notify Rep. within three (3)
business days of the date on which a Prospect's name is presented if
Licensor has a Pre-existing Relationship with such Prospect, and will
promptly thereafter provide Rep. with evidence from Licensor records
of such Pre-existing Relationship. Rep. accepts such appointment, and
agrees to use its best efforts to facilitate such Arrangements.
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b. Rep. agrees that during the Term hereof, any extension thereof or for
so long as Licensor shall be paying Commissions to Rep. for services
rendered hereunder, Rep. shall neither market, represent nor recommend
any product or service competing, directly or indirectly, with
Licensor's Trillennium System or any component thereof.
c. With regard to Rep.'s marketing activities, Rep. agrees that:
i. Licensor may, at Licensor's sole option, be involved in all
planning and marketing presentations;
ii. Rep.'s right to participate in any seminars, trade show, etc,
with Licensor shall be at Licensor's sole discretion, on such
terms and conditions as Licensor, shall, in it's sole discretion
determine, on a case by case basis;
iii. All pricing, use fee and other financial determinations shall be
determined solely by Licensor, in Licensor's sole discretion, and
Rep. shall not make any representations regarding the same
without Licensor's express written consent;
iv. Rep. understands and agrees that in the event Rep. introduces
another individual or group which Licensor agrees to engage as a
marketing representative, then and in that event, Rep.'s sole
compensation arising therefrom or from any business or fees of
any kind or nature generated from or through such marketing
representative shall be in the form of a credit of the number of
timely paid not repeat imaging sessions generated from such
accounts to Rep.'s order for purpose of calculating Rep.'s
entitlement to stock bonus(es) in accord with Schedule A attached
hereto.
7. No Obligation to Consummate Arrangement or Installations; No Fees Unless
Arrangement Consummated. Licensor is under no obligation to consummate any
Arrangement with any Prospect(s) or to place its Trillennium System in any
location requested by Rep. or to continue any such installation or
Arrangement unless Licensor, in its sole discretion, determines it is in
its best interest to do so. Notwithstanding anything in this Agreement to
the contrary, Licensor is under no obligation to pay any Commission (or
other consideration whatsoever) to Rep. under this Agreement or otherwise,
unless Licensor has received the payment from which such commission arises
from a particular Prospect, with whom Licensor does not have a Preexisting
Relationship, under an Arrangement entered into during the Term. Licensor
is free to consummate an Arrangement without obligation to Rep. at any time
with any person or entity that is not a Prospect or with any Prospect with
whom Licensor has a Preexisting Relationship.
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8. Commissions
a. The parties acknowledge and agree that Rep. will spend substantial
amounts of time, energy and expense to introduce Licensor to Prospects
who may be interested in entering into an Arrangement with Licensor.
Rep. will facilitate Arrangements between Licensor and the Prospects
at Rep.'s own expense. As Rep.'s remuneration and on a monthly basis,
Rep. will receive from Licensor for such services a commission as
documented on Schedule A, attached hereto and made a part hereof, or
as otherwise agreed in writing by Licensor and Rep. on an individual
Prospect basis. The commission due and payable for each Prospect will
be equal to either a flat fee for arranging a License agreement with a
Prospect or a specified percentage of the "gross sales proceeds"
(defined below) arising from the use of each Trillennium System
licensed to that Prospect by Licensor on which payment for a
particular underlying invoice is actually received by Licensor
(collectively, the "Commissions"). Commissions (as opposed to flat
fees for establishment of License a License Agreement with Rep.'s
prospect) will only be due and payable once an underlying invoice with
respect to a particular Prospect has been paid in full to Licensor, or
if not paid in full then once an amount mutually agreed upon between
Licensor and the Prospect has been received by Licensor on such
invoice.
b. For purposes of this Section, "gross sales proceeds", means the
aggregate payment actually received by Licensor on a particular
invoice for use of the Trillennium System under the invoice, net of
all sales or use taxes.
c. Licensor will make payment of the gross aggregate Commissions due Rep.
for a particular month, if any, within fifteen (15) days of the end of
such month. In addition, at the time of such payment, Licensor will
disclose in writing to Rep. the underlying gross sales proceeds for
each Prospect and a statement of the underlying Commission due (or
Commission refund owed by) Rep. for each Prospect (a "Commission
Statement").
d. The obligation to pay commissions arising from any License Agreement
entered into between Licensor and Rep.'s Prospect(s) shall survive
termination of this Agreement, except in the event this Agreement is
terminated due to Rep's malfeasance or other breach of the terms and
conditions hereof.
e. Rep., by its duly authorized agents and/or representatives, will
have the right for six (6) months from the date of any Commission
Statement to audit those records of Licensor related to the
Commission Statement in order to verify that Commissions due and
owing Rep. associated with the invoices covered by the Commission
Statement were correctly calculated and paid (an "Audit"). All
Audits will be conducted at Rep.'s sole expense at Licensor's
premises during normal business hours. An Audit may be conducted
only upon at least five (5) business days' advance written notice
to Licensor. Rep. will conduct any Audits in such manner as not
to delay or interfere with Licensor's business and operations.
Rep. will provide Licensor within fifteen (15) business days of
the Audit, Rep.'s written findings regarding the Audit. Licensor
will have fifteen (15) business days from the date of its receipt
of Rep.'s written Audit findings to provide Rep. with Licensor's
written response to such findings. If any Audit finding, as
agreed by the parties, reveals an underpayment, Licensor will
immediately pay the underpaid amount to Rep.. If any Audit
finding, as agreed by the parties, reveals an overpayment, Rep.
will immediately pay the overpaid amount to Licensor.
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9. Independent Contractor The parties acknowledge that they will be acting as
independent contractors and not as employees of one another for all
purposes, including payment of Social Security, Medicare, employment or
unemployment tax, and any other federal, state and local taxes. Neither
party will have a claim against the other for any employee benefits,
including but not limited to leave benefits, retirement benefits, worker's
compensation benefits, or unemployment insurance benefits. Rep. will be
responsible and have exclusive liability for payment of any taxes relating
to the Commissions paid to Rep. under this Agreement. In accomplishing its
functions pursuant to this Agreement, the parties acknowledge that Rep.
will not be a party to any contract for the licensing or sale of goods or
services between Licensor and the Prospects.
10. Prohibition on Representations or Warranties. Neither Rep. nor Licensor has
the authority, whether express or implied, to bind the other. In
furtherance of the foregoing Rep. agrees that it will not under any
circumstances or in any manner: (i) make any Representations or Warranties,
or (ii) negotiate any terms or conditions of any arrangement, on behalf of
Licensor.
11. Term. The initial term of this Agreement shall be for a period of two (2)
years and shall begin on the Commencement Date unless sooner terminated by
written notice provided by either party no less than 60 days prior to the
date of intended termination. In the event Rep. is responsible for
generating a minimum of fifty (50) Prospects with whom Licensor has entered
into Licensee Agreements during the initial two (2) year term, this
Agreement shall, at Rep.'s option, be extended for an additional five (5)
years on the same terms and conditions as set forth herein.
12. Indemnification. Rep. agrees to and shall indemnify, defend and hold
harmless Licensor from any and all claims, damages and attorney fees
arising from the investigation or defense of any claim brought against
Licensor as a result of any claims for personal injury or other damage,
products liability claims, or other claims of any kind or nature resulting
from Rep.'s activities with, related to or otherwise arising from, the use
of Trillennium Services or the interpretation of any images generated by
the Trillennium System. This provision shall survive the termination of
this Agreement.
13. Termination. This Agreement shall terminate upon the earlier to occur of
the following:
a. Expiration of the term set forth in section 13 hereof;
b. Immediately at the option of the Licensor in the event Rep. shall fail
to fulfill any of its obligations under this Agreement or any other
agreement between Licensor and Rep.;
c. Immediately upon Rep.'s ceasing to do business, making an assignment
for the benefit of creditors, voluntarily seeking protection under
bankruptcy or similar laws, entering into a composition, becoming
insolvent, or if an order liquidating the Rep. is issued from a court
of competent jurisdiction. Rep. shall immediately notify Licensor in
writing of any of the events referenced in this subparagraph.
d. Immediately upon Licensor's ceasing to do business, making an
assignment for the benefit of creditors, seeking protection under
bankruptcy or similar laws, entering into a composition, becoming
insolvent, or if an order liquidating the Licensor is issued from a
court of competent jurisdiction. Licensor shall immediately notify
Rep. in writing of any of the events referenced in this subparagraph.
Notwithstanding the foregoing, this Agreement shall not terminate
automatically and, at Rep.'s option, shall continue in full force and
effect, if the holder of debt or trustee in bankruptcy accepts this
Agreement as executory, allowing Rep. to continue operation, including
use of the Licensed Rights and other grants of rights hereunder, and
the manner originally contemplated by the parties hereto without
adverse effect on the rights and obligations created hereunder.
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14. Rights and Obligations upon Termination.
a. Upon expiration or sooner termination of the terms of this Agreement,
and without regard to the cause thereof, all rights, privileges and
obligations shall cease and terminate and the Rep.'s rights to market
the Licensed Rights and Trillennium System and/or Services shall
immediately cease and be deemed to have reverted back to Licensor,
provided however, that no termination of this Agreement by expiration
or otherwise shall rescind or give rise to any rights to rescind
anything done or any payment made or other consideration given to
either party hereunder prior to the time such termination becomes
effective.
b. The provisions of this Agreement, which are specifically intended to
survive the termination of this Agreement, shall continue to be
applicable.
c. Immediately upon termination for any reason, Rep. shall, at Rep.'s
sole expense, immediately and in a commercially reasonable manner,
return all Licensor's property, including but not limited to all
Thermal Imaging Cameras and related hardware and/or software to
Licensor at such address or addresses as Licensor shall designate to
Rep. in writing. In the event Rep. fails to return all property to
Licensor as aforesaid Licensor shall, at Rep.'s sole expense, have the
unrestricted right to enter upon Rep.'s premise(s) and to in a
commercially reasonable manner remove all Licensor's property
including but not limited to its Thermal Imaging Cameras and related
hardware and/or software.
15. Notices. All notices or other communications given under this Agreement
shall be in writing and delivered personally, telefaxed, be sent by
certified mail, return receipt requested, postage prepaid, or be sent by a
nationally or internationally recognized courier service, with charges
billed to or prepaid by the sender of such notice, and shall be addressed
to the party to whom such notice is given as follows:
If to Licensor: Xx. Xxxx X. Xxxxxxx
---------------
President
Trillennium Medical Imaging, Inc.
0000 Xxxxxxx Xx.
Xxxxxxx, Xxxx 00000
With a copy to: Xxxxxx X. Xxxxx, Esq.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxx 00000
If to Rep.: Allevia Medical
Attn. Xxxxx Xxxxx
With a copy to:
or to such other address and to the attention of such other persons indicated in
a subsequent notice given in accordance with this paragraph. Any notice given in
accordance with this paragraph shall be deemed to have been given when received
or the date noted as the date delivery was refused or the date noted as the date
when delivery was unsuccessfully attempted if delivery by the Postal Service or
a third-party courier or when telefaxed, provided acknowledgment of transmission
is evidenced by the telefaxed transmitting the same.
16. No Joint Venture. Nothing herein contained shall be construed to place the
parties in the relationship of partners or joint venturers, and neither
Licensor nor Rep. shall have the power to obligate or bind the other party
in any manner whatsoever.
17. Binding Effect/Merger. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their permitted successors and
assigns. The parties agree that the terms and conditions hereof supersede
any and all prior negotiations and/or representations by either party, made
by any of their respective officers, employees, agents or representatives,
whether verbal or written.
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18. Time Is of the Essence. Time shall be of the essence with respect to all of
Licensor's and Rep.'s obligations and duties hereunder, all of which shall
be performed and honored strictly in accordance with the terms of this
Agreement notwithstanding any prior, continuing or subsequent course of
dealing, custom or usage in trade.
19. Severability Should any term or provision of this Agreement be determined
by any court to be illegal or in conflict with any applicable law, the
validity of the remaining terms and provisions hereof, shall not be
affected thereby. Such remaining terms and provisions hereof shall remain
in full force and effect as if this Agreement had been executed with the
invalid portion thereof eliminated. It is hereby declared by the parties
hereto that they would have executed the remaining terms and provisions of
this Agreement without including herein any such terms or provisions that
may hereafter for any reasons be determined invalid.
20. Modification and Waiver This Agreement may not be altered, modified or
amended, nor shall any waiver or consent be binding on either party, unless
in writing and executed by both Rep. and Licensor. The waiver by either
party of any breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent breach of the same or any other
provision hereof.
21. Governing Laws. The terms of this Agreement shall be governed by,
construed, and interpreted under the laws of the United States of America
and the State of Ohio without regard to the principles of conflict of law.
Both parties represent they have been independently represented by counsel
in the preparation of this Agreement; as such, this Agreement shall be
deemed to have been jointly written by the parties and neither party shall
be deemed to be the preparer of this Agreement. The forum for all
litigation shall be within the County of Xxxxx, State of Ohio.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the day
and year first written above.
Licensor: Trillennium Medical Imaging, Inc.
By: /s/ Xxxx X. Antonio
------------------------
Xxxx X. Xxxxxxx
Title: President
Rep.: Allevia Medical
By: /s/ Xxxxx Xxxxx
--------------------
Xxxxx Xxxxx
Title: President
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