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DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is made and dated for reference
effective as of the 21st day of October, 1998.
BETWEEN:
A Little Reminder (ALR) Inc., a company continued under the
laws of the State of Wyoming and having an address for delivery
located at 0000-000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X., Xxxxxx,
X0X 0X0 (hereinafter referred to as the "Producer")
OF THE FIRST PART
AND
Mo Betta Corp., a company duly incorporated under the laws of
the State of Nevada and having an address for delivery located at
Xxxxx 000, 0000 Xxxxxxxxx Xxxxx, Xxxx, Xxxxxx, 00000 (hereinafter
referred to as the "Distributor")
OF THE SECOND PART
WHEREAS:
A. The Producer has developed a unique and patented
medication compliance system to remind patients to ingest time
sensitive medication;
B. The system is known as A Little Reminder (ALR)[TM] (the
"ALR");
C. The Distributor desires to obtain the non-exclusive right
to distribute and market the ALR in the United States of America
and Canada (the "Area");
D. The Producer has agreed to grant and the Distributor
desires to obtain the rights from the Producer (collectively the
"Rights") with respect to the ALR or in respect of any invention or
discovery by the Producer of any product or device similar in
design and/or function to, or designed or appropriate for use with,
or improving on the ALR, for the distribution and sale of the ALR
(including the ALR as it may be improved in the future and any
product or device similar in design and/or function, or improving
on the ALR) throughout the Area;
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E. In order to maintain the Rights in good standing in
accordance with the terms of the Agreement the Distributor will be
required to purchase at least $5,000,000 worth of the ALR from the
Producer during the first year term of this Agreement, and should
the Distributor fail to purchase at least $5,000,000 worth of the
ALR during the initial term of this Agreement then the Distributor
shall have thereby, without any further act, immediately terminated
its Rights under this Agreement and, thereupon, the parties hereto
acknowledge and agree that all residual and contingent rights and
obligations of both parties under the terms of this Agreement shall
also immediately terminate;
F. In order to maintain the Rights in good standing in
subsequent years, the Producer and Distributor agree to set amounts
to be purchased (the "Target") no later than January 1 of each
subsequent year the Agreement is in effect.
G. If the Producer and Distributor fail to agree to Target,
for the term of this Agreement, the Target will be set at a level
25% higher than that of the previous calendar year.
H. The Distributor acknowledges that the Rights to market
and distribute the ALR are unique and valuable assets of the
Producer; and
I. The parties hereto wish to commit to writing the terms,
covenants and conditions of their respective rights and duties with
respect to the aforesaid,
NOW THEREFORE THIS AGREEMENT WITNESSETH that is consideration
of the mutual covenants and agreements herein contained, and
subject to the terms and provisions hereinafter set out, the
parties hereto covenant and agree each with the others as follows:
Article 1
XXXXX
Xxxxx of Rights
The Producer hereby grants to the Distributor the Rights
during the continuance of this Agreement to distribute and market
the ALR, within the Area, using the ALR and such other items as the
Producer may hereafter offer for sale in connection with the ALR.
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Article 2
DISTRIBUTION AND SUPPLY
2.1 Supply and Pricing of ALR
The ALR will be supplied by the Producer to the Distributor,
at prices published by the Producer from time to time, on the
following basis
(A) The Distributor shall be responsible for and shall
applicable, in connection with the sale of ALR,
(B) Discount of 40% of the published prices will be provided
to the Distributor;
(C) The Producer shall be required to advise the Distributor
at least thirty days before any proposed increase in the
price of ALR and associated products to be charged by the
Producer to the Distributor under the terms of this
Agreement;
(D) Subject to delays beyond the control of the Producer,
shipment of the Distributor's order shall be made by the
Producer within thirty days of the receipt of a purchase
order from the Distributor with respect to the supply of
ALR and associated products;
(E) All shipments of ALR and associated products to the
Distributor shall be delivered by the Producer to the
Distributor at the Distributor's designated place of
business, factory or warehouse located in the Area and
such shipment shall only be FOB such designation if such
shipment has an invoiced price in excess of $10,000; and
(F) All purchase orders given by the Distributor to the
Producer at the time of delivery of Product shall be
accompanied for each such order by payment in either cash
or by certified cheque, money order or bank draft unless
otherwise agreed to between the parties hereto. There
shall be no term of credit advanced from the Producer to
the Distributor unless the same is agreed upon by the
parties hereto in writing.
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2.2 Delay
The Producer shall not be liable for any delays in delivery
beyond the control of the Producer, and shall endeavour to meet any
delivery date requested by the Distributor.
2.3 Risk
Except with respect to ALR and associated products which is
found to be defective or with respect to damage which is caused to
such Product in transport and outside the control of the
Distributor, all ALR and associated products shipped by the
Producer to the Distributor shall be at the risk of the Distributor
following shipment from the location or locations specified by the
Producer in paragraph "2.1(E)" hereinabove.
2.4 Warranties, Etc.
Any warranty, terms of sale or other promises made by the
Distributor to a customer of the Distributor, or to any other
person, which is not included in the Producer's warranty shall be
the Distributor's responsibility to fulfill, and the Producer shall
have and take no obligation or responsibility to the Distributor or
its customers with respect to the same.
Article 3
NAME OF THE PRODUCER'S SYSTEM AND OF THE PRODUCT
3.1 Ownership of Trade Marks
The distributor agrees that the trade xxxx and/or trade name
A Little Reminder ALR[TM], a medication compliance device and other
trade marks or trade names used in connection with the Producer's
business are owned by the Producer and identify the wares and
services produced and performed by the Producer. Neither this
Agreement nor the operation of the distribution business
contemplated by this Agreement confers or shall be deemed to confer
upon the Distributor any interest in the trade marks or trade names
now or hereafter owned or adopted by the Producer (the "Producer's
Trade Marks") including, without limiting the generality of the
foregoing, the trade xxxx and/or trade name.
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3.2 Prohibition against Disputing Producer's Rights
The Distributor covenants and agrees not to, during or after
the term of this Agreement, contest the title to the Producer's
Trade Marks, in any way dispute or impugn the validity of the
Producer's Trade Marks or take any action to the detriment of the
Producer's interests therein. The Distributor acknowledges that by
reason of unique nature of the ALR and the Producer's aforesaid
property rights and by reason of the Distributor's knowledge of and
association with the ALR and associated products during the term
hereof, the aforesaid covenant, both during the term of this
Agreement and thereafter, is reasonable and commensurate for the
protection of the legitimate business interests of the Producer.
3.3 Infringement of Trade Marks
The Distributor shall immediately notify the Producer of any
infringement of or challenge to the Producer's use of any of the
Producer's Trade Marks as soon as it shall become aware of the
infringement or challenge.
Article 4
DISTRIBUTOR IS INDEPENDENT AND NOT AGENT
4.1 Independent Contractor
The Distributor shall be an independent contractor and not an
employee of the Producer, and the Producer assumes no obligations,
contractual or otherwise, existing or which may arise with respect
to the Distributor's operations. Nothing contained herein shall
constitute a partnership or joint venture between the parties
hereto, and all sales made by the Distributor shall be in the
Distributor's name without reference to the Producer if deemed so.
4.2 Distributor not Agent
The Distributor shall have no right to pledge the credit of
the Producer, and the Distributor is not, and shall not describe
itself as, the agent of the Producer or the manufacturer of any of
the ALR.
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Article 5
DURATION OF AGREEMENT
5.1 Commencement
The Agreement shall be effective as and from the 21st day of
October, 1998.
5.2 Expiration
Subject to earlier termination for failure to meet Target, the
Agreement will expire on December 31, 2008.
5.3 The First Year
For the purposes of this Agreement, the first year is defined
as October 21, 1998 to December 31, 1999.
5.4 Subsequent Years
Subsequent years will mean calendar year starting on January
1, 2000.
Article 6
CERTAIN COST OF PRODUCER
6.1 Costs Related to Assistance
Where the Producer provides training or sales promotion
assistance within the Area at the Distributor's request, the
Distributor shall pay to the Producer the Producer's actual costs
incurred in connection therewith.
Article 7
ADDITIONAL COVENANTS AND AGREEMENTS OF THE PRODUCER
7.1 Producer will Supply
The Producer agrees to supply ALR and associated products to
the Distributor, upon the request of the Distributor, pursuant to
the terms of this Agreement.
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7.2 Product Liability Insurance
If required, the Producer agrees to provide to the
Distributor, not more frequently than annually and upon the
Distributor's written request to do so, with evidence of product
liability insurance.
Article 8
ADDITIONAL COVENANTS AND AGREEMENTS OF THE DISTRIBUTOR
8.1 Restriction to Area
The Distributor covenants and agrees with the Producer that
the Distributor will not at any time deal in the ALR and associated
products or sell or solicit sale for the ALR and associated
products except within the Area agree upon.
8.2 Standards of Operation, Record, Etc.
During the currency of this Agreement the Distributor shall:
(A) Maintain a proper place of business, including a
telephone answering service, easily accessible to
purchasers or potential purchasers of ALR and associated
products form the Distributor during normal business
hours in different time zones;
(B) Service the ALR and associated products at all
distribution locations in the Area efficiently and at
reasonable and competitive rates, such services to
include attending each distribution location at least
once every month unless otherwise agreed to in writing by
the Producer;
(C) Maintain sufficient stock to service and properly replace
all of the ALR and associated products sold by the
Distributor; and
(D) Make diligent efforts to sell the ALR and associated
products within the Area.
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8.3 Claims Etc. against the Producer
The Distributor hereby covenants and agrees to indemnify and
save harmless the Producer from and against all claims, demands,
damage, loss, costs and expense incurred by reason of any act,
neglect, default or representation of or by the Distributor, its
employees or otherwise arising in connection with the use and
employment of the ALR and associated products or the sales of the
ALR and associated products, save where the same is caused solely
by the act or omission of the Producer.
Article 9
ASSIGNMENT
9.1 Assignment by Distributor
The Distributor shall not assign this Agreement or any rights
hereunder in whole or in part unless it shall have first requested
and obtained the consent in writing of the Producer to such
proposed assignment.
9.2 Assignment by Producer
This Agreement and all rights hereunder may be assigned or
transferred by the Producer at any time provided that the
Producer's assignee agrees to expressly honour the terms and
conditions of this Agreement.
9.3 Deemed Assignment
The change in control of the Distributor shall be deemed to be
an assignment of this Agreement and therefore subject to paragraph
9.1 hereinabove.
Article 10
INDEMNIFICATION
10.1 In consideration of the premises and as an inducement to
the Producer to enter into this Agreement with the Distributor, the
Distributor does hereby covenant and agree with the Producer:
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(A) To make the due and punctual payment of all monies and
charges payable under this Agreement,
(B) To effect prompt and complete performance of all and
singular the terms, covenants, conditions and provisions
of this Agreement contained on the part of the
Distributor to be kept, observed and performed; and
(C) To indemnify and save harmless the Producer from any
loss, costs or damages arising out of any failure to pay
monies and charges due under this Agreement to the
Producer and/or the failure of the Distributor to perform
any of the terms, covenants, conditions and provisions
hereof.
10.2 This indemnity is absolute and unconditional and the
obligation of the Distributor shall not be released, discharged,
mitigated, impaired or affected by:
(A) Any extension of time, indulgences or modifications which
the Producer may extend or make the Distributor in
respect of the performance of any of the obligations of
the Distributor under any one or more of the provisions
of this Agreement;
(B) Any waiver by or failure of the Producer to enforce any
of the terms, covenants, conditions and provisions of
this Agreement;
(C) Any assignment of this Agreement or its rights hereunder
by the Distributor or by any trustee, receiver or
liquidator; or
(D) Any consent which the Producer may give to any such
assignment.
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Article 11
DEFAULT AND TERMINATION
11.1 Default of Distributor
This Agreement may be terminated, at the sole option of the
Producer, without prejudice to any other right or remedy of the
Producer herein or existing at law, upon the happening of any of
the following events:
(A) The failure of the Distributor to effect prompt and
complete performance, within sixty days of written notice
from the Producer to do so, of all and singular the
terms, covenants, conditions and provisions in this
Agreement contained on the part of the Distributor to be
kept, observed and performed; or
(B) The Distributor ceasing to carry on business or
threatening to cease carrying on business.
11.2 Default by Producer
Where the Producer has failed, following sixty days' written
notice from the Distributor to do so, to effect prompt and complete
performance of all and singular the terms, covenants, conditions
and provisions in this Agreement contained on the part of the
Producer to be kept, observed and performed, the Distributor may at
its sole option terminate this Agreement.
Article 12
GENERAL PROVISIONS
12.1 Notices
All notices, directions, or other instruments required to be
given hereunder shall be in writing and may be given by mailing the
same by prepaid registered mail or delivering the same to the party
entitled to receive the same at its address as indicated on the
front pages of this Agreement, or at such other address as a party
hereto may in writing advise. Any notice, direction or other
instrument aforesaid if delivered shall be deemed to have been
given or made on the third business day following the day on which
it was mailed. During the period of any mail strike notices shall
only be given by personal delivery.
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12.2 Time of the Essence
Time shall be of the essence of this Agreement.
12.3 Successor and Assigns
This Agreement shall ensure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors,
administrators, successors, the assigns of the Producer and the
permitted assigns of the Distributor.
12.4 Entire Agreement
This instrument contains the entire agreement of the parties
hereto and no representations, inducements, promises or agreements
not embodied herein shall be of any force or effect, unless the
same are set forth in writing signed by the parties hereto.
12.5 Invalid Provisions
Should any part of this Agreement for any reason be declared
invalid or unenforceable, such decision shall not affect the
validity of any remaining portion, which remaining portion shall
remain in force and effect as if this Agreement had been executed
with the invalid or unenforceable portion thereof eliminated.
12.6 Applicable Law
This Agreement shall be construed in accordance with the laws
of the State of Nevada.
12.7 Number and Gender
All terms and words used in this Agreement, regardless of the
number and gender in which they are used, shall be deemed and
construed to include any other numbers, singular or plural, and any
other gender, masculine, feminine or neuter, or body corporate, as
the contest or sense of this Agreement may so require.
12.8 Captions
The captions appearing in this Agreement are inserted for
convenience of reference only and shall not affect the
interpretation of this Agreement.
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IN WITNESS WHEREOF, the undersigned has executed this
Agreement this 21st day of October, 1998.
A LITTLE REMINDER (ALR) INC. MO BETTA CORP.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
