DISTRIBUTION AGREEMENT
This Distribution Agreement ("Agreement") dated this 3rd day of January,
2006 is by and between PetCARE Television Network, Inc., a Florida corporation
with an address of 0000 Xxxxxxxx Xxxx, Xxxxx X, Xxxxx, Xxxxxxx 00000 ("PetCARE
TV") and Xxxxxx Animal Health Supply, an Ohio company with an address of 0000
Xxxxxx Xxxxxxx, Xxxxxx, Xxxx 00000 ("XXXXXX").
WHEREAS, PetCARE TV produces and sells annual subscriptions for its client
education DVD magazine for use in veterinary waiting rooms (the "Monthly DVD
Magazine"), and produces and sells Welcome Home Your New Friend DVDs for
veterinarians to use as a give-away for their clients with new puppies and
kittens ("Welcome Home DVD"); and
WHEREAS, PetCARE TV is willing to grant distribution rights for the
Monthly DVD Magazine and Welcome Home DVD to XXXXXX; and
WHEREAS, XXXXXX is willing to promote, market, and distribute the Monthly
DVD Magazine and Welcome Home DVD throughout the United States,
NOW, THEREFORE, the parties agree as follows:
1. Exclusive Distribution Rights: PetCARE TV grants XXXXXX exclusive
distribution rights in the United States for the Monthly DVD
Magazine and Welcome Home DVD for sale to any non-AAHA (American
Animal Hospital Association) hospitals in the United States.
2. Term of Agreement: The term of this Agreement is for three years
beginning on January 1, 2006 and terminating on December 31, 2009.
This Agreement may be renewed for successive one-year periods under
the same terms if XXXXXX provides PetCARE TV a written notice to
renew no less than sixty (60) days prior to the termination of this
Agreement.
3. Sale of Monthly DVD Magazine: XXXXXX agrees to sell the Monthly DVD
Magazine to non-AAHA hospitals within the United States. PetCARE TV
will design and provide an electronic file of a subscription
agreement for XXXXXX which XXXXXX agrees to use. XXXXXX will pay all
costs associated with printing costs of the subscription agreement.
XXXXXX agrees to provide copies of the completed and signed
subscription agreement to PetCARE TV within five (5) days of the
sale.
4. Pricing and Fulfillment of Monthly DVD Magazine:
a. Subscription Pricing: PetCARE TV currently offers an annual
subscription to its Monthly DVD Magazine for $199.
b. Exclusivity: All sales of the Monthly DVD Magazine will be
handled exclusively by XXXXXX. PetCARE TV agrees to provide
XXXXXX with all non-AAHA leads and requests for orders of the
Monthly DVD Magazine.
c. Pricing to XXXXXX: XXXXXX agrees to sell the Monthly DVD
Magazine at PetCARE TV's current listed price UNLESS OTHERWISE
AGREED UPON. PetCARE TV agrees to inform XXXXXX of changes in
pricing structure thirty (30) days prior to effecting the
price change. XXXXXX agrees to process the payment for all
Monthly DVD Magazines sold. XXXXXX will receive a fifty
percent (50%) discount on each annual subscription of the
Monthly DVD Magazine sold. XXXXXX agrees to submit completed
and signed subscription agreements to PetCARE TV on a weekly
basis and remit fifty percent (50%) of the proceeds from each
subscription to PetCARE TV. PETCARE TV will be responsible for
sending the Monthly DVD Magazine to the veterinarian
subscribers at its cost.
d. Renewals: The same fifty percent (50%) pricing structure will
apply to all renewals sold by XXXXXX.
5. Sale of Welcome Home Your New Friend DVDs: XXXXXX agrees to sell the
Welcome Home DVD to non-AAHA hospitals within the United States.
a. Pricing to XXXXXX: XXXXXX agrees to purchase copies of Welcome
Home DVDs from PetCARE TV and PetCARE TV agrees to deliver the
Welcome Home DVDs in individual color sleeves. XXXXXX agrees
to pay PetCARE TV the price of $1.00 for each Welcome Home
DVD, plus all shipping costs incurred by PetCARE TV. XXXXXX
will be invoiced by PetCARE TV when each order is shipped and
XXXXXX agrees to remit payment within thirty (30) days. XXXXXX
may sell the Welcome Home DVD at prices to be determined by
XXXXXX and XXXXXX agrees to handle all invoicing and shipping
of the Welcome Home DVDs to purchasers.
b. Exclusivity: All sales of the Welcome Home DVD will be handled
exclusively by XXXXXX. PetCARE TV agrees to provide XXXXXX
with all non-AAHA leads and requests for order of the Welcome
Home DVD.
c. Pricing Advantage to Subscribers: PetCARE TV encourages XXXXXX
to maintain a pricing advantage on the Welcome Home DVD to
subscribers of the Monthly DVD Magazine.
6. Demonstration Copies: Upon request, PetCARE TV will supply
demonstration copies of the Monthly DVD Magazine and Welcome Home
DVD free of charge to XXXXXX for its staff and marketing
representatives to use at product exhibitions and hospital visits.
7. Promotional Efforts: XXXXXX agrees to use its best efforts to
promote PetCARE TV and its Monthly DVD Magazine and Welcome Home DVD
within the United States and agrees to display the PetCARE TV client
education system at major conventions. A PetCARE TV representative
will be available if requested.
8. Billboard Advertisement: PetCARE TV agrees to produce a billboard
for XXXXXX free of charge which will be aired at least once each
hour on the Monthly DVD Magazine which recognizes XXXXXX as a
sponsor in helping provide PetCARE TV's client education system.
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9. Compliance Reports: XXXXXX agrees that at the end of each six-month
period, it will require each of its individual sales representatives
to prepare a subscriber compliance report to be submitted to PetCARE
TV by the tenth of the following month. As compensation for
individual sales representatives to participate in the subscriber
compliance reporting, PetCARE TV agrees to provide each sales
representative with one (1) free annual subscription per six-month
period that can be used within their respective territories for
practices who need a system or for a renewal.
10. Termination: This Agreement may be terminated by either party with
written notice to the other party in the event that the either
party:
a. Breaches any material term of this Agreement and fails to
remedy such breach within 30 days of receiving written notice
of such breach.
b. Fails to make payment due within 30 days after payment becomes
due.
c. Declares bankruptcy, suffers the appointment of a receiver or
liquidator, or suspends business activity for any reason.
d. Assigns or attempts to assign rights granted under this
Agreement to a third party without the written agreement of
the other party.
11. Hold Harmless:
x. XXXXXX shall at all times be an independent party and not an
agent of PetCARE TV, and will indemnify and hold harmless
PetCARE TV from any or all charges, expenses, bills, claims,
judgments or actions against PetCARE TV arising out of the
independent activities of XXXXXX.
b. PetCARE TV shall at all times be an independent party and not
an agent of XXXXXX and will indemnify and hold harmless XXXXXX
from any or all charges, expenses, bills, claims, judgments or
actions against XXXXXX arising out of independent activities
of PetCARE TV.
12. Trademarks:
x. XXXXXX acknowledges the trade names and trademarks used by
PetCARE TV are the property of PetCARE TV. PetCARE TV grants
XXXXXX royalty-free right to use such trade names and
trademarks during the term of this Agreement for the uses
specified herein.
b. PetCARE TV acknowledges the trade names and trademarks used by
XXXXXX are the property of XXXXXX. XXXXXX grants PetCARE TV
royalty-free right to use such trade names and trademarks
during the term of this Agreement for the uses specified
herein.
13. Notices: Any notice, direction or instrument required or permitted
to be given pursuant to this Agreement shall be given in writing by
(a) telegram, facsimile transmission or similar method, if confirmed
by mail as herein provided, by mail; (b) if mailed postage prepaid,
by certified mail, return receipt requested; or (iii) hand delivery
to any party at the addresses of the parties specified, below. If
given by telegram or facsimile transmission or similar method or by
hand delivery, such notice, direction or instrument shall be deemed
to have been given or made on the day on which it was given, and if
mailed, shall be deemed to have been given or made on the second
business day following the day after which it was mailed. Any party
may, from time to time by similar notice, give notice of any change
of address, and in such event, the address of such party shall be
deemed to be changed accordingly. The address, telephone number and
facsimile transmission number for the notice of each party are:
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PetCARE Television Network, Inc.
Attn: Xxxxxxx Xxxxx, President
0000 Xxxxxxxx Xxxx, Xxxxx X
Xxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxx.xxx
XXXXXX ANIMAL HEALTH SUPPLY
Attn: Xxxxx Xxxxxxx, President
0000 Xxxxxx Xxxxxxx
Xxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxx.xxx@xxxxxxxxx.xxx
14. Recovery of Enforcement Costs: In the event any party shall
institute any action or proceeding to enforce any provision of this
Agreement to seek relief from any violation of this Agreement, or to
otherwise obtain any judgment or order relating to or arising from
the subject matter of this Agreement, each prevailing party shall be
entitled to receive from the losing party such prevailing party's
actual attorneys' fees and costs incurred to prosecute or defend
such action or proceeding.
15. Assignment: No party shall have the right, without the consent of
the other party, to assign, transfer, sell, pledge, hypothecate,
delegate, or otherwise transfer, whether voluntarily, involuntarily
or by operation of law, any of such party's rights or obligations
created by the provisions of this Agreement, nor shall the parties'
rights be subject to encumbrance or the claim of creditors. Any such
purported assignment, transfer, or delegation shall be null and
void.
16. Captions and Interpretation: Captions of the articles and sections
of this Agreement are for convenience and reference only, and the
works specified therein shall in no way be held to explain, modify,
amplify or aid in the interpretation, construction, or meaning of
the provisions of this Agreement. The language in all parts to this
Agreement, in all cases, shall be construed in accordance with the
fair meaning of that language as if prepared by all parties and not
strictly for or against any party. Each party and counsel for such
party has reviewed this Agreement. The rule of construction, which
requires a court to resolve any ambiguities against the drafting
party, shall not apply in interpreting the provisions of this
Agreement.
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17. Entire Agreement: This Agreement and any attachments to this
Agreement are the final written expression and the complete and
exclusive statement of all the agreements, conditions, promises,
representations, warranties and covenants between the parties with
respect to the subject matter of this Agreement, and this Agreement
supersedes all prior or contemporaneous agreements, negotiations,
representations, warranties, covenants, understandings and
discussions by and between and among the parties, their respective
representatives, and any other person, with respect to the subject
matter specified in this Agreement. No provision of any exhibit to
this Agreement shall supersede or annul the terms and provisions of
this Agreement, unless the matter specified in such exhibit shall
explicitly so provide to the contrary, in the event of ambiguity in
meaning or understanding between the provisions of this Agreement
proper and the appended exhibits, the provisions of this Agreement
shall prevail and control in all instances.
18. Choice of Law and Consent to Jurisdiction: This Agreement shall be
deemed to have been entered into in the State of Florida. All
questions concerning the validity, interpretation, or performance of
any of the terms, conditions and provisions of this Agreement or of
any of the rights or obligations of the parties shall be governed
by, and resolved in accordance with the laws of the State of
Florida, without regard to conflicts of law principles.
19. Waiver and Modification: No modification, supplement or amendment of
this Agreement or of any covenant, condition, or limitation
specified in this Agreement shall be valid unless the same is made
in writing and duly executed by both parties. No waiver of any
covenant, condition, or limitation specified in this Agreement shall
be valid unless the same is made in writing and duly executed by the
party making the waiver. No waiver of any provision of this
Agreement shall be deemed, or shall constitute, a waiver of any
other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver.
20. Successors and Assigns: This Agreement and each of its provisions
shall obligate the heirs, executors, administrators, successors, and
assigns of each of the parties. Nothing specified in this section,
however, shall be consent to the assignment or delegation by any
party of such party's respective rights and obligations created by
the provisions of this Agreement.
21. Third Party Beneficiaries: Except as expressly specified by the
provisions of this Agreement, this Agreement shall not be construed
to confer upon or give to any person, other than the parties hereto,
any right, remedy or claim pursuant to, or by reason of this
Agreement or of any term or condition of this Agreement.
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22. Severability: In the event any part of this Agreement, for any
reason, is determined by a court of competent jurisdiction to be
invalid, such determination shall not affect the validity of any
remaining portion of this Agreement, which remaining portion shall
remain in full force and effect as if this Agreement had been
executed with the invalid portion thereof eliminated. It is hereby
declared the intention of the parties that they would have executed
the remaining portion of this Agreement without including any such
part, parts, or portion which, for any reason, may be hereafter
determined to be invalid.
23. Governmental Rules and Regulations: The Transaction is and shall
remain subject to any and all present and future orders, rules and
regulations of any duly constituted authority having jurisdiction of
the Transaction.
24. Execution in Counterparts: This Agreement may be prepared in
multiple copies and forwarded to each of the parties for execution.
All of the signatures of the parties may be affixed to one copy or
to separate copies of this Agreement and when all such copies are
received and signed by all the parties, those copies shall
constitute one agreement which is not otherwise separable or
divisible. Counsel for Purchaser shall keep all of such signed
copies and shall conform one copy to show all of those signatures
and the dates thereof and shall mail a copy of such conformed copy
to each of the parties within thirty (30) days after the receipt by
such counsel of the last signed copy, and such counsel shall cause
one such conformed copy to be filed in the principal office of such
counsel.
25. Survival of Covenants, Representations and Warranties: All
covenants, representations, and warranties made by each party to
this Agreement shall be deemed made for the purpose of inducing the
other party to enter into and execute this Agreement. The
representations, warranties, and covenants specified in this
Agreement shall survive the Closing and shall survive any
investigation by either party whether before or after the execution
of this Agreement. The covenants, representations, and warranties of
the Seller and Purchaser are made only to and for the benefit of the
other and shall not create or vest rights in other persons.
26. Consent to Agreement: By executing this Agreement, each party, for
itself represents such party has read or caused to be read this
Agreement in all particulars, and consents to the rights,
conditions, duties and responsibilities imposed upon such party as
specified in this Agreement. Each party represents, warrants and
covenants that such party executes and delivers this Agreement of
its own free will and with no threat, undue influence, menace,
coercion or duress, whether economic or physical. Moreover, each
party represents, warrants, and covenants that such party executes
this Agreement acting on such party's own independent judgment and
upon the advice of such party's counsel.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
signed on the date first written above.
PetCARE Television Network, Inc.
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx, President
XXXXXX ANIMAL HEALTH SUPPLY, LLC
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx, President
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