EXHIBIT 10.13
SALES AND DISTRIBUTION LICENSING AGREEMENT
This Independent Contractor Sales and Distribution Licensing Agreement
("Agreement") is made and entered into, effective this 30th day of November
2001, by and between AMERICARE BIOLOGICALS, INC., a Florida corporation doing
business at 00 X.X. 000xx Xxxxxx, Xxxxx, Xxxxxxx 00000 (XXX) ("Americare") and
XXXXXXXX XXXXX assignee(s) ("Distributor") doing business at 000 Xxxxxxxx Xxx
Xxxxx, #000, Xxxxx, Xxxxxxx 00000.
WHEREAS, AMERICARE owns and/or has proprietary interest in certain non
invasive diagnostic testing technology including but not limited to, testing for
HIV, using its Saliva, which has been incorporated into its Xxx-Xxx(R) HIV Tests
("Product").
WHEREAS, Distributor desires to market and sell the Product in the
Territory as defined herein;
WHEREAS, the parties desire to reduce to writing their agreement for
Distributor to market and sell the Product;
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
X. XXXXX OF LICENSE
1. Subject to Distributor's receipt of a written government
approval/certified mandate from the appropriate department of the Governments of
Brazil, Argentina, Ecuador, Uruguay, Paraguay, Chile, and Mercosur (hereinafter
referred to as "Mandates"), AMERICARE grants Distributor a nonexclusive license
to market and sell the Product in the Territories. The term "Territory" as used
in this Agreement shall mean: Those countries listed above.
2. The term "Mandates" as used herein shall mean approval by the
appropriate government's Health and/or Drug Administration that the Product is
an accepted procedure and/or test within the country and complies with the
country's appropriate laws governing such testing device and/or pharmacology.
3. Distributor shall bear all expenses incurred for the
acquisition of any licenses, registrations and/or Mandates for the Territory.
The Product cannot be sold or marketed by Distributor prior to the issuance of
the Mandates for the Product in the Territory. In the event Distributor fails to
receive the Mandates within six (6) months from the effective date of this
Agreement, this Agreement shall terminate without the parties having any further
recourse against each other.
4. Distributor will market and sell the Product under the
Xxx-Xxx(R) label. Each unit of the Product sold by Distributor must also list
Distributor as the distributor on the Product's label.
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5. AMERICARE will grant Distributor an exclusive license to
market and sell the Product after Distributor purchases the minimum units of the
Product as set forth in Addendum A. Said exclusive rights shall remain in force
as long as Distributor maintains the minimum annual purchase requirements set
forth in Addendum A and as long as Distributor maintains the Mandates.
6. Any and all licenses, registrations, and/or Mandates shall be
the property of AMERICARE. If at any time Distributor is not in compliance with
any of the terms of this Agreement, Distributor shall deliver to AMERICARE any
and all licenses, registrations and/or Mandates with all duties paid; and
further Distributor warrants that it shall execute any documentation necessary
to facilitate the delivery of same.
7. Any authority granted by AMERICARE to Distributor to procure
any and all licenses, registrations and/or Mandates pursuant to this Agreement,
shall not be considered in any way to be a granting of any intellectual property
and/or other proprietary rights to Distributor.
B. PURCHASE ORDERS
1. Distributor will from time to time place purchase orders with
AMERICARE for the Product. AMERICARE will, upon receipt of any and all purchase
orders, fill such orders within a reasonable period of time after receipt for
the order. If AMERICARE is unable to fill any order within a reasonable period
of time, AMERICARE will contact Distributor and advise it of the delay and
inform Distributor when it can reasonably expect shipment.
C. SHIPMENT, DELIVERY & RECEIPT
1. All orders will be shipped air FOB Miami. All shipping costs
will be paid by Distributor. All shipments must be maintained in an air
controlled temperature environment between 45 and 80 degrees Fahrenheit.
Distributor may designate the common carrier to be used and AMERICARE will
comply with all reasonable requests.
2. AMERICARE will pass the risk of loss to Distributor upon the
shipment of each order.
3. All shipping documents, freight forwarder documents, import
licenses, insurance, and other necessary documentation shall be secured by
Distributor before the shipment of an order.
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4. Distributor will provide any and all documents which may be
necessary to assist AMERICARE in securing the necessary export licenses from the
United States to the Territory.
D. TECHNICAL SUPPORT AND TRAINING
1. AMERICARE is not obligated to provide any technical support,
research materials, lectures or training to Distributor. From time to time
AMERICARE may provide data, descriptions and explanations of the Product. The
provision of any services or materials from time to time by AMERICARE will not
create any obligations under this Agreement.
2. Any support, lectures or training provided to Distributor at
the offices of AMERICARE will be provided free of charge.
3. Any support, lectures or training provided to Distributor at
any place other than the offices of AMERICARE shall be at the expense of
Distributor. This includes, but is not limited to, coach air fare (business
class for President), food, lodging, any expenses incurred by AMERICARE to
provide the requested services. AMERICARE will not charge Distributor any
professional fees for the use of any AMERICARE scientist.
E. MARKETING AND PRODUCT LITERATURE
1. Distributor must submit all marketing and sales brochures,
pamphlets, product inserts and other printed materials to AMERICARE for final
approval. Said approval shall be within AMERICARE's sole discretion and shall
not be unreasonably withheld.
2. AMERICARE shall provide instructions for the use of the
product and technical data, descriptions and explanations of the Product's
technology in English only. All translations must be performed by Distributor
and Distributor shall fully indemnify AMERICARE from any and all liability which
may arise as a result of any translated documents. Copies of all translated
documents must be provided to AMERICARE. paid.
F. PAYMENT
1. Payment to AMERICARE must be in the form of bank drafts, money
wires and/or letters of credit from a FDIC approved bank. All letters of credit
must be assignable,
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divisible, negotiable and irrevocable. AMERICARE must approve all letters of
credit and said approval is subject to AMERICARE's sole discretion.
2. All orders must be fully paid or secured by a letter of credit
(approved by AMERICARE) prior to the shipment. AMERICARE in its sole discretion
may accept partial payment.
3. No shipment of an order will be made if a prior shipment has
not been fully paid.
G. INDEPENDENT CONTRACTOR
1. Distributor will perform as an independent contractor under
this Agreement and not as an agent of AMERICARE. Distributor shall not represent
directly or indirectly that Distributor is an agent, employee or legal
representative of AMERICARE. Distributor shall not have the authority to incur
any liabilities or obligations of any kind in the name of or on behalf of
AMERICARE.
2. As an independent contractor, the mode, manner, method and
means used by Distributor in the performance of services shall be of
Distributor's selection and under the sole control and direction of Distributor.
Distributor shall be responsible for all risks incurred in the operation of
Distributor's business and shall enjoy all the benefits thereof. Any persons
employed by or subcontracting with Distributor to perform any part of
Distributor's obligations hereunder shall be under the sole control and
direction of Distributor and Distributor shall be solely responsible for all
liabilities and expenses thereof. AMERICARE shall have no right or authority
with respect to the selection, control, direction, or compensation of such
persons.
H. CONFIDENTIALITY AND PUBLICITY
1. Neither party will publish or otherwise disclose the terms,
conditions and prices of this Agreement, except as required by law. Should
AMERICARE-employee, in the performance of this Agreement, disclose to
Distributor information that is confidential or proprietary, Distributor will
not disclose or distribute any such information, in whole or in part, to any
person other than Distributor's employees and agents, and solely to the extent
necessary for the performance of Distributor's duties hereunder. Distributor
will notify AMERICARE immediately, but within no more than three (3) business
days, if this Agreement or any other document pertaining to the business
dealings between the parties,
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is subpoenaed by any court, governmental agency or other authority.
2. In the conduct of AMERICARE's business, AMERICARE has
developed or obtained certain Confidential Business Information and Trade
Secrets that are specific to AMERICARE's business, and the unauthorized use or
disclosure of said Confidential Business Information and Trade Secrets would be
injurious to AMERICARE. For purposes of this Agreement (i) the term
"Confidential Business Information" means ideas, information, methods and
documentation concerning AMERICARE or the business of AMERICARE (including but
not limited to, sensitive customer data, supplier data, information regarding
corporate organization, pricing and other marketing information) that is of
value to AMERICARE and is not known to competitors or the public-at-large and
(ii) the term "Trade Secrets" means scientific or technical information,
designs, processes, techniques or other information used or possessed by
AMERICARE that derives economic and/or goodwill value from not being generally
known, including but not limited to, information and documentation pertaining to
the design, elements, techniques and procedures of AMERICARE's present and
future products. The terms "Confidential Business Information" and "Trade
Secrets" shall not include specific information that Distributor had in its
possession prior to the disclosure by AMERICARE, or information that is, or
becomes generally known or available to the public through no fault, act or
omission of Distributor.
3. Distributor shall never, directly or indirectly, use, disclose
or disseminate to any other person, firm, organization or employee, or otherwise
employ, any Trade Secrets.
4. Upon termination of Distributor's relationship with AMERICARE
for any reason, or at any time upon request of AMERICARE, distributor shall
deliver to AMERICARE, all material in Distributor's possession or control which
are or contain Confidential Business Information and/or Trade Secrets, or which
are otherwise the property of AMERICARE.
5. Distributor will not make reference to AMERICARE or any of
AMERICARE's business units, subsidiaries, parent company, officers, employees,
representatives, agents and/or business dealings, in any advertising, press
releases, product labels or publicity matter without the express written consent
of AMERICARE.
I. COMPLIANCE WITH LAWS
1. Distributor represents that it has, as of the execution of
this Agreement, all
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licenses and permits necessary under the law to enable Distributor to fully
perform this Agreement. Further, Distributor will maintain such licenses and
permits current during the term of this Agreement.
2. Distributor agrees that it will not market, distribute and/or
otherwise use the Product in any manner which violates the laws of any country.
J. LIABILITY AND INDEMNIFICATION
1. Distributor will defend, indemnify and hold AMERICARE harmless
from and against any damages, liabilities, claims, costs and expenses, including
reasonable attorney's fees, up through and including appeals, related to
Distributor's marketing and distribution of the Products or related to
Distributor's breach of this Agreement. If the Distributor, within thirty (30)
days after notice, fails to accept defense of any claims and/or actions,
AMERICARE shall have the right, but not the obligation, to undertake the defense
of, and to compromise or settle any claims on behalf of, for the account of, and
at the risk of Distributor. If the claims cannot by their nature be defended
solely by one party, the other party shall make available all information and
assistance that may be reasonably requested.
K. SUBCONTRACTING AND ASSIGNMENT
1. This Agreement and the obligations of Distributor hereunder,
may not be subcontracted by Distributor, in whole or in part, without the
written consent of AMERICARE.
2. Distributor can not assign or transfer its rights under this
Agreement without the prior written consent of AMERICARE.
L. NON-COMPETITION AND NON-SOLICITATION PROVISIONS
1. During the term of this Agreement and for a period of three
(3) years thereafter, Distributor will not, directly or indirectly, on
Distributor's behalf or on behalf of others, solicit AMERICARE's suppliers,
subcontractors and/or manufacturers for the purpose of providing the Product or
similar products and/or Product. The parties agree that any breach of this
covenant will cause irreparable harm to AMERICARE and will entitle AMERICARE to
an injunction, without the necessity of posting any bond, in addition to other
remedies available at law or equity.
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2. Distributor agrees that, during the term of this Agreement,
and for a period of three (3) years thereafter, Distributor will not solicit or
recruit AMERICARE's employees or employees of AMERICARE's suppliers to work for
Distributor or anyone else except AMERICARE or the suppliers, as applicable. The
parties agree that any breach of this covenant will entitle AMERICARE to an
injunction, without the necessity of posting any bond, in addition to other
remedies available at law or equity.
M. TESTING AND EVALUATIONS
1. Any samples of the Product for the purpose of evaluation must
be used under AMERICARE's protocol and a copy of any test results or evaluation
reports must be submitted to AMERICARE in the appropriate format.
N. DEFINITION OF AMERICARE
1. For purposes of this Agreement, AMERICARE means its parent
company, affiliates, subsidiaries, divisions and related entities or any
corporation or other business directly or indirectly controlling, controlled by
or under common control by AMERICARE, whether before or after execution of this
Agreement.
O. TERM AND TERMINATION OF AGREEMENT
1. The beginning date of this Agreement, will be November 30th,
2001 and the expiration date will be the 30th day of November 2002 unless
otherwise terminated as set forth herein.
2. Either party may terminate this Agreement for any reason, or
no reason, upon 60 days advance written notice.
3. Either party may terminate this Agreement before its
expiration immediately, and without sixty (60) days prior notice, if the other
party materially breaches the Agreement. Termination of this Agreement shall not
cancel or terminate any rights and/or obligations which arose prior to the
effective date of termination and which must continue to give effect to their
meaning at the time such right and/or obligation arose.
4. This Agreement shall terminate immediately, with or without
notice, if any entity and/or third party receives Mandates for the Product in
the Territory prior to Distributor.
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5. In the event the Product fails to meet its purpose, this
Agreement shall be terminated upon sixty (60) days written notice. AMERICARE
shall have thirty (30) days to cure any alleged defect after written notice of
same.
P. GENERAL PROVISIONS
1. Notices: All notices and demands hereunder shall be in
writing and shall be served by personal service or by mail at the address of the
receiving party set forth in this Agreement (or at such different address as may
be designated by such party by written notice to the other party). All notices
or demands by mail shall be certified or registered mail, return receipt
requested, or by nationally-recognized private express courier, and shall be
deemed complete upon receipt, if sent to the following addresses:
AMERICARE BIOLOGICALS, INC.: DISTRIBUTOR:
To: Xx. Xxxxxx X. X'Xxxxxx To: Xxxxxxxx Xxxxx
Title: President
Address: 00 XX 000xx Xxxxxx Address: 000 Xxxxxxxx Xxx Xxxxx
Xxxxx, Xxxxxxx 00000 #811
Xxxxx, Xxxxxxx 00000
Copy to: Corporate Counsel
00 XX 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
2. Governing Law and Venue: This Agreement shall be governed by
and construed in accordance with the substantive laws of the State of Florida.
Venue for any judicial proceeding shall be in Miami-Dade County, Florida, U.S.A.
3. Relationship of the Parties: Each party is acting as an
independent contractor and not as an agent, partner, or joint venture with the
other party for any purpose. Except as provided in this Agreement, neither party
shall have any right, power, or authority to act or to create any obligation,
express or implied, on behalf of the other.
4. Force Majeure: Neither party shall be responsible for delays
or failure of performance.
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5. Survival of Certain Provisions: The noncompetition and
nonsolicitation provisions and the indemnification and confidentiality
obligations set forth in this Agreement shall survive the termination of this
Agreement by either party for any reason.
6. Headings: The titles and headings of the various sections and
paragraphs in this Agreement are intended solely for convenience of reference
and are not intended for any other purpose whatsoever, or to explain, modify or
place any construction upon or on any of the provisions of this Agreement.
7. All Amendments in Writing: No provision in either party's
purchase orders, or in any other business forms employed by either party will
supersede the terms and conditions of this Agreement, and no supplement,
modification, or amendment of this Agreement shall be binding, unless executed
in writing by a duly authorized representative of each party to this Agreement.
8. Entire Agreement: The parties have read this Agreement and
agree to be bound by its terms, and further agree that it constitutes the
complete and entire agreement of the parties and supersedes all previous
communications, verbal or written, and all other communications between them
relating to this Agreement and to the subject matter hereof. No representations
or statements of any kind made by either party, which are not expressly stated
herein, shall be binding on such party.
9. Waiver: The failure or delay of any party at any time to
require performance by another party of any provision of this Agreement even if
known, shall not affect the right of such party to require performance of that
provision or to exercise any right, power or remedy hereunder, and any waiver by
any party of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach of such provision
or, a waiver of the provision itself, or a waiver of any rights, power or remedy
under this Agreement. No notice to or demand on any party in any case shall, of
itself, entitle such party to any other further notice or demand in similar
or other circumstances.
10. Interpretation: No provision of this Agreement is to be
interpreted for or against any party because that party or that party's legal
representative or counsel drafted such provision.
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11. Corporate Authority: Any corporation signing this Agreement
represents and warrants that the execution, delivery and performance of this
Agreement by such corporation has been duly authorized by all necessary
corporate action and is valid and binding on such corporation.
12. Attorneys Fees: In the event legal action shall become
necessary to enforce any terms of this Agreement, the prevailing party shall be
entitled to an award of all COSTS of such legal action, including but not
limited to reasonable attorney's fees.
13. Severability: In case any one or more of the provisions
contained in this agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision hereof, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth below and this Agreement shall become effective as of the
date first set forth above.
AMERICARE BIOLOGICALS, INC: DISTRIBUTOR:
By: /s/ Xxxxxx X. X'Xxxxxx /s/ Xxxxxxxx Xxxxx
---------------------------- By: ---------------------------------
Xx. Xxxxxx X. X'Xxxxxx Xxxxxxxx Xxxxx
Its: President
Date: NOVEMBER 30, 2001 Date: NOVEMBER 30, 2001
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ADDENDUM A
1. THE PRICE OF THE PRODUCT PER UNIT IS $8.00 (U.S.)
2. MINIMUM PURCHASE REQUIREMENTS:
YEAR ONE 3% OF THE POPULATION OF _______________
YEAR TWO 5% OF THE POPULATION OF _______________
YEAR THREE 7% OF THE POPULATION OF _______________
3. SAMPLES MUST BE PURCHASED AT THE FULL PRICE.
AMERICARE BIOLOGICALS, INC: DISTRIBUTOR:
/s/ Xx. Xxxxxx X. X'Xxxxxx /s/ Xxxxxxxx Xxxxx
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By: Xx. Xxxxxx X. X'Xxxxxx By: Xxxxxxxx Xxxxx
Its: President
Date: NOVEMBER 30, 2001 Date: NOVEMBER 30, 2001
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