DISTRIBUTION AGREEMENT
This Distribution Agreement (the "Agreement”) is effective 6th FEBRUARY 2014.
BETWEEN: EMERALD MEDICAL APPLICATIONS LTD. (the “Company”), a corporation
organized and existing under the laws of the State of Israel with its head
office located at:
0, Xxxxxx Xxxxxx, Xxxxxx 0000000, XXXXXX
AND: Medical Edge Pty Ltd (the "Distributor"), a corporation organized and
existing under the laws of the Victoria, Australia with its head office located
at: X.X Xxx 0000 Xxxxxxxxx Xxxxxxxx XXXXXXXX XXXXXXXXX 0000
RECITALS
WHEREAS, Company has developed DermaCompare, Software as a Service (SaaS)
platform described in Schedule A attached here (the "Products") and desires to
grant Distributor
the right to market and distribute the Products; and
WHEREAS, Distributor is in the business of marketing and distributing medical
products and desires to have Developer grant to it the right to market and
distribute the Products.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the
parties hereto agree as follows:
1. DEFINITIONS
When used in this Agreement, the following terms shall have the respective
meanings indicated, such meanings to be applicable to both the singular and
plural forms of the terms defined:
“Agreement” means this agreement, the Schedules attached hereto and any
documents included by reference, as each may be amended from time to time in
accordance with the terms of this Agreement.
“Customer” or “End-User” means any person or company who purchases products from
Distributor.
“Delivery Point” means locally hosted software server at Distributor's
facilities at territory Australia wide (Australia, New Zealand and Oceania)
“Territory” means the geographic area or areas identified in paragraphs 2 & 3.
“Trademark” means any trademark, logo, service xxxx or other commercial
designation, whether or not registered, used to represent or describe the
Products of the Company and the Company itself.
2. APPOINTMENT OF DISTRIBUTOR
The Company hereby appoints the Distributor as a Company's nonexclusive
distributor of her Products in the Territory - Australia, New Zeeland and
Oceania, and Distributor accepts that position. Company will do all within that
its technical and legal capabilities to protect the designated Territory of the
Distributor.
3. DILIGENCE
3.1. The Distributor agrees to act diligently, conscientiously and faithfully to
distribute the DermaCompare platform under this Agreement, and will provide the
best promotional marketing services.
3.2. The distributor will work in the target geographies - Australia, New
Zealand and Oceania, in accordance with its laws. The Company will not have any
legal liability for any activity or violation of criminal laws. It is further
emphasized that if the Company will be sued by any person or an organization -
private or government, the distributor shall bear all legal and financial
responsibility for any act against the company.
3.3. At all times the Company will have a current, world-wide coverage of
Product Liability Insurance and Indemnity Insurance, ensuring protection for
users of its product range. Company shall provide a copy of a Certificate of
Currency of above insurance policies.
4. NON-COMPETE
Distributor agrees that it will not distribute or represent any Products in the
Territory which compete with the Products during the term of this Agreement.
5. SUPPORTING DOCUMENTATION & TRAINING MATERIALS
Company will provide, at its own expense, distributor catalogs, educational
materials, technical support documentation and training of DermaCompare, as
required and as it sees fit. Marketing materials will be distributed at
Distributor’s expense to the target territory.
6. PRICING AND SALES COMMISSION
6.1. End-user (physician/clinic/ hospital/ photographer) will be charged $951
(Ninety Five AUSTRALIAN dollars), to be paid directly to the Company, as an
annual subscription fee - providing access to DermaCompare – an image-processing
platform for comparison of photographic data, recorded over a period of one year
(unlimited number of photos can be uploaded for each patient, annually).
6.2. During the first year, Distributor will receive the right to introduce up
to 500 potential customers to use of DermaCompare at no cost (for the annual
subscription fees) – for the purpose of promotion and marketing of the system.
6.3. The Company shall pay the Distributor as follows:
6.3.1. For the first 1000 paying patient image records, during the first year
20% for the annual subscription, enabling full access to DermaCompare patient
data.
6.3.2. For the following 1001-5000 patient image records – 25% for the annual
subscription, enabling full access to DermaCompare patient data.
6.3.3. For 5001 patient image records and above (during that year) -35% for the
annual subscription, enabling full access to DermaCompare patient data.
1 This pricing is based on no research in the Australian market. Based on
limited informal discussions to date, pricing around $45 per patient would be
recommended. However, as part of a full feasibility study we will be better
informed about fee structure
6.4. Special success fees for 10,000 or more patients’ image records per year –
Success fee will be based on an additional 10% of the annual turnover.
6.5. Section 6 price quotes are "gross" and include tax. - Note – GST in
Australia needs to be charged.
6.6. Set up costs include out of pocket expenses, time & travel are to be
invoiced to the end-user. We estimate a daily rate of installation would be $850
(plus GST) per day, plus expenses.
7. PAYMENT
The Company shall provide the Distributor a full & comprehensive list of
patients that used the product on a monthly basis, no later than 5 working days
post end of the previous month.
Distributor has the right to ask for up-to-date user’s list at any given time
from the Company and will be granted access to these listings without delay.
Using these verified listings, the Distributor will raise an invoice to the
Company as per Section 6 above
The company shall pay the Distributor the payments due after receiving invoice
and detailed proof of payment by end users. Payment shall be completed in 30
days following receipt of invoice.
8. DELIVERY
8.1. The Company will provide analysis (comparison between the images in each
set) within 24 hours (1 working day) after receipt of the images in the
DermaCompare database. Otherwise Distributor has the right to cancel the
subscription – either for the specific patient or specific set of images, and
without receiving payment for this subscription. Distributor will not be
entitled to receive additional free subscriptions in lieu of cancellation of a
free subscription
8.2. Company shall not be responsible for a delay in any order in the following
cases:
8.2.1. Force Majeure and without prejudice to the generality of the above - war,
hostilities, emergency situations and natural disasters. Neither party shall be
liable or deemed to be in default for any delay or failure in performance under
this Agreement or interruption of service resulting directly or indirectly from
acts of God, or any causes beyond the reasonable control of such party.
8.2.2. Damage to materials used within the system.
8.3. If a situation described in Section 8.2 applies, section 7 above will be
affected.
9. ASSIGNMENT
For all terms and purposes, this is an exclusive agreement, so the Distributor
has the exclusive rights to market, promote and sell any product/s from Emerald
Medical Applications in the designated territory as described in Section 2
above. .
This Agreement is not assignable by either party hereto, without a written
consent from the other party; This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors.
Distributor shall give all information required for the assignment of rights
with full disclosure to the Company at least 60 days prior to assignment of
rights coming into effect.
10. AGREEMENT TERM
10.1. This Agreement shall have an initial term of THREE years from the
Effective Date (the "Initial Term"), and shall thereafter automatically renew
for successive 3 additional periods of THREE years each (each a "Renewal Term"),
unless earlier terminated in accordance with the terms of this Agreement. Either
party may cancel this Agreement effective 60 days prior to end of Agreement and
/ or extension of the agreement, by serving written notice of such termination
on the other party.
10.2. The Company and the Distributor are hereby given an option to extend the
agreement to 3 additional periods of THREE (3) years each, and provided that
mutual notification in writing to each other shall be conducted at least 60 days
before the end of the agreement and / or extension of the agreement as expressed
by both sides.
10.3. Distributor shall have the right to cancel the agreement at any time,
provided that the Company is informed at least 60 days in advance - and in
writing.
10.4. The Company shall be entitled to cancel the agreement at any of the
following conditions:
10.4.1. If Distributor has not introduced more than 500 patient image records
during a period of one full year at a pre-determined price.
10.4.2. If Distributor has not sold at least 2000 patient image records by the
second consecutive full yearat a pre-determined price.
10.4.3. If Distributor has not sold at least 6,000 image records in the third
full year at a pre-determined price.
10.4.4. Distributor violates basic clause in thisclause 10 and has failed to
correct the violation within 30 days from the period required to do so in
writing.
10.4.5. Distributor has been declared insolvent or bankrupt.
10.5. Distributor shall pay all local costs associated with the product’s
adherence to Australian regulations regime, if applicable. If the Company
decides to cancel the agreement, the Distributor entitles to invoice the Company
for reimbursements of its registration costs related to the Company’s product/s.
11. TRANSFER OF OWNERSHIP
If parties sell ownership of the product / services to new owners, the rights
and obligations of this Agreement shall be fully re-assigned to the new owner.
12. FUNDAMENTAL BREACH OF AGREEMENT
It is hereby agreed that the provisions of sections 2, 3, 4, 6 to this Agreement
shall be deemed Sections elementary principal , and breach of all or any of them
shall be deemed a fundamental breach of this Agreement within the meaning of
this term - under the Contracts (Remedies for Breach of Contract) , which
related to - in 1970 .
The Parties agree that any dispute between the parties will be heard in the
Magistrate's Court in Tel Aviv - Jaffa.
13. NOTICES
Any notice sent by registered mail by one party to another at the address
indicated in the introduction to the agreement shall be deemed reaching its
destination 72 hours after being sent via registered mail or hand-delivered by
hand – at the time of delivery .
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set
forth first above, with full knowledge of its content and significance and
intending to be legally bound by the terms hereof.
COMPANY DISTRIBUTOR
Authorized Signature Authorized Signature
Lior Wayn
Co-Founder & CEO
Print Name and Title Print Name and Title
