EXCLUSIVE COLLABORATION AND DISTRIBUTION AGREEMENT
Exhibit
10.1
THIS
EXCLUSIVE COLLABORATION AND DISTRIBUTION AGREEMENT
(“Agreement”) is made as of this 17th
day of
June, 2005 (“Effective Date”), by and between InforMedix, Inc., a Delaware
corporation with offices at Georgetowne Office Park, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“Vendor”), and invivodata, Inc., a Delaware corporation
with offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(“Distributor”).
WHEREAS,
Vendor
has developed an electronic device and backend software application (the
“Med-eMonitorTM
System”)
providing for the storage and dispensing of medication, and the collection
and
monitoring of medication compliance and patient outcomes data and is desirous
of
utilizing Distributor’s distribution channels; and possesses certain
Intellectual Property; and
WHEREAS,
Distributor is established in the field of electronic patient recorded outcomes
for clinical trials (“ePRO”) and is desirous of obtaining the right to market
and distribute Vendor’s products, as set forth below; and
WHEREAS,
each of
the parties wish to collaborate in their efforts to develop and implement a
marketing and sales program for the Med-Monitor System;
NOW
THEREFORE,
in
consideration of the promises and mutual covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, Vendor and Distributor agree as follows:
1. DEFINITIONS.
For
purposes of this Agreement, the following terms shall have the meanings set
forth below:
Agreement
shall
mean this agreement plus all Exhibits.
Alliance
shall
mean the promises, obligations and duties performed by both Vendor and
Distributor pursuant to the terms of this Agreement.
Confidential
Information
shall
have the meaning set forth in Section 6.1 herein.
Customers
shall
mean those purchasers of the Products described in Exhibit
A.
Distributor shall
mean invivodata, Inc.
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Effective
Date
shall be
the date of the Agreement as set forth in the Introduction.
eDiary
Companies
shall
mean those companies competing with Distributor in the ePRO Market during the
term of this Agreement.
ePRO
shall be
an acronym which refers to the words “electronic patient reported outcomes” as
those words are commonly used in describing the collection of data by patients
enrolled in clinical trials sponsored by pharmaceutical companies.
Intellectual
Property
shall
have the meaning set forth in Section 5.5 herein.
Market
shall
mean the market for electronic patient reported outcomes (“ePRO”) devices and
services for the clinical drug trials industry, including Clinical Drug Trials
Phases I through IV.
Marks
shall
have the meaning set forth in Section 5.1 herein.
Master
Equipment Lease Agreement
shall
mean an agreement between Distributor and Vendor for the lease of
Med-eMonitorTM
Device
units as set forth in Exhibit
F.
Master
License and Services Agreement
shall
mean an agreement describing the terms upon which Distributor will obtain and
Vendor will provide certain services to Distributor and / or its Customers
in
connection with the deployment, implementation, customization and support of
the
Med-eMonitor System as set forth in Exhibit
G.
Med-eMonitorTM
Device shall
mean the patented device invented and manufactured by Vendor and used by
patients, that physically contains, organizes, and monitors medication. The
device includes a handheld device and a cradle. The handheld device contains
an
LCD screen, a variety of buttons, and medication storage. The cradle contains
a
communications modem, and battery charging capability.
Med-eMonitorTM
Firmware shall
mean the software embedded in the Med-eMonitorTM
Device
that operates the device, and provides for communications linkage with the
Med-eXpert database.
Med-eMonitorTM
System shall
mean the combination of hardware and software comprising the
Med-eMonitorTM
Device,
Med-eMonitorTM
Firmware, Med-eXpertTM
Backend
Software, and Med-eXpertTM
Database
providing for the storage and dispensing of medication, and the collection
and
monitoring of medication compliance and patient outcomes data;
Med-eXpertTM
Backend Software shall
mean the software that provides for a real-time protocol design tool that
programs the Med-eMonitor devices with the ePRO protocols, and that enables
analysis and reporting of data captured by the Med-eMonitorTM
Device.
Med-eXpertTM
Backend System shall
have the same meaning as the Med-eXpertTM
Backend
Software.
Med-eXpertTM
Database shall
mean the database which stores all data captured by the Med-eMonitorTM
Device
and/or any other device with is operated by the Med-eXpertTM
Backend
Software.
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Products shall
mean those products or services to be leased, licensed or sold by Vendor to
Distributor for distribution hereunder as such products, including upgrades
and
enhancements, as described in Exhibit
A
attached
hereto, and as may be amended upon the mutual agreement of the parties.
Purchase.
The term
purchase shall refer to any procurement of Vendor Products or Services through
the execution of a either the Master Equipment Lease Agreement as set forth
in
Exhibit F, or Master License and Services Agreement as set forth in Exhibit
G.
Services
shall
mean those services to be performed by Vendor to Distributor as described in
Exhibit
A attached
hereto,
as may be amended upon mutual agreement of the parties.
Solutions
shall
mean any value creation opportunity that may satisfy a business need of
Customers resulting from some application of the Med-eMonitorTM
System.
Taxes
shall
have the meaning set forth in Section 3.2 herein.
Term shall
have the meaning set forth in Section 9.1 herein.
Vendor shall
mean InforMedix, Inc.
Work
Statement
shall
have the meaning set forth in the Master License and Services Agreement attached
to this Agreement as Exhibit
G.
2. APPOINTMENT;
EXCLUSIVITY; COLLABORATION ON MARKETING AND SALES; OBLIGATIONS OF THE
PARTIES.
2.1 Appointment.
(a) Subject
to the terms and conditions contained herein, Vendor hereby appoints Distributor
to be the exclusive and sole worldwide distributor among competitive eDiary
Companies of the Products and Services described in Exhibit
A
within
the Market. For purposes of this Agreement, “exclusive and sole worldwide
distributor” means that Vendor shall not appoint any other eDiary Company as
distributor with express or implied authority to sell goods or establish
locations anywhere in the world with respect to the Market during the Term
of
this Agreement; provided,
however,
that
nothing set forth herein shall preclude Vendor from (i) directly servicing
Customers in the Market, (ii) directly marketing the Products in the Market,
or
(iii) directly making sales into or within the Market, provided that none of
Vendor’s direct sales within the Market shall be to Customers introduced to
Vendor by Distributor during the term of this Agreement.
(b) Vendor
shall not knowingly sell Products to a third party eDiary company who intends
to
market or sell Products within the Market.
2.2 INTENTIONALLY
LEFT BLANK
2.3 Collaboration
on Business Planning, Marketing and Sales.
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(a) Distributor
and Vendor shall co-develop a strategic plan which describes in detail the
Alliance strategy for marketing, distributing, servicing and supporting the
Products in the Market during the Term of this Agreement. The Strategic Plan
shall be reviewed and updated by the parties as necessary on a regular basis.
Distributor and Vendor each represents and warrants that it shall use its
commercially reasonable efforts to take the actions and achieve the goals set
forth in the Strategic Plan.
(b) Distributor
and Vendor agree to work in good faith to continuously and periodically update
such Strategic Plan to assure that it is relevant to current market conditions.
(c) Distributor
and Vendor will work with each other’s marketing representatives to present the
Alliance in sales materials, trade shows and on the companies’ respective
websites.
(d) Distributor
and Vendor agree to issue a press release to the satisfaction of both parties
within two business days of the effective date of this Agreement, or within
a
time period mutually agreed to by the parties, to announce the formation of
the
Alliance. Distributor and Vendor shall work together in good faith to issue
timely press releases to the satisfaction of both parties about significant
achievements of the Alliance on an ongoing basis.
(e) Distributor
and Vendor shall identify public speaking and publication opportunities to
present at trade shows and industry conferences to promote their common
interests.
2.4 Obligations
and Representations of Distributor.
(a) Distributor
represents that it has full power and authority to enter into this Agreement
and
perform the obligations hereunder without violating any agreement with any
third
party, or any law or regulation and that the person signing this Agreement
on
behalf of it has been duly authorized and empowered to execute this Agreement.
Distributor acknowledges that it has read this Agreement, understands it, has
had the opportunity to seek legal advice and agrees to be bound by its terms.
(b) Distributor
represents and covenants that it shall market the Products within the Market
as
an integral part of Distributor’s product line, worldwide.
(c) Distributor
represents and covenants that it shall perform all obligations under this
Agreement in a commercially reasonable manner.
(d) Distributor
shall use all appropriate Distributor marketing tools to promote the Products
with equal prominence to all other Distributor Products.
(e) Distributor
shall deliver marketing materials describing the Products that contain text,
graphics, and format mutually agreed by both parties. Distributor shall not
undertake or permit removal or alteration of any patent numbers, trade names,
trademarks, notices, nameplates or serial numbers affixed to the Products and
documentation, without Vendor’s prior written consent.
(f) Distributor
shall use its commercially reasonable efforts in promoting, marketing,
supporting and servicing the Products within the Market, and in fulfilling
its
other obligations in this Agreement.
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(g) Distributor
shall not knowingly sell, transfer or otherwise provide any Products to persons
or entities that are competing with or developing products to compete with
Vendor.
(h) Distributor
shall act in good faith in all its dealings with Vendor and
Customers.
(i) Distributor
shall not enter any agreement with Customers that conflicts with any term or
condition of this Agreement.
(j) Distributor
shall comply with the terms of this Agreement, including all policies, terms,
conditions and Vendor policies attached hereto.
(k) Distributor
shall not, while this Agreement is in force, commence manufacture of any spare
parts usable for service and maintenance of the Products nor shall Distributor
modify any hardware or software with respect to the Products. Vendor’s
warranties shall not apply to non-Vendor modifications to the
Products.
(l) Distributor
agrees, to the best of its knowledge, to comply with all United States or
Foreign laws or regulations, as they may exist from time to time, regarding
export licenses or the control or regulations of exportation or re-exportation
of products or technical data sold or supplied to Distributor.
(m) Distributor
shall pay for the replacement of any Product or demo device lost during the
sales process.
(n) Distributor
shall maintain adequate records regarding sales.
(o) Confidential
Obligations and Representation of Distributor. In
addition, Distributor represents and agrees to be bound by the specified
confidential obligations and representations set forth in Exhibit
I.
2.5 Obligations
and Representations of Vendor.
(a) Vendor
shall act in good faith in all its dealings with Distributor and
Customers.
(b) Vendor
agrees to comply with all United States or Foreign laws or regulations, as
they
may exist from time to time, regarding export licenses or the control or
regulations of exportation or re-exportation of products or technical data
sold
or supplied to Vendor.
(c) Vendor
shall comply with the terms of this Agreement, including all policies, terms,
conditions and Vendor policies attached hereto.
(d) Vendor
shall grant Distributor exclusive rights among competitive eDiary Companies
to
distribute the Med-eMonitor System in the Market.
(e) Vendor
will provide an export mechanism from the Med-eMonitor System in a format
reasonably specified by the Distributor or Customer.
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(f) Confidential
Obligations and Representation of Vendor. In
addition, Vendor represents and agrees to be bound by the specified confidential
obligations and representations set forth in Exhibit
J.
3. CONFIDENTIAL
PRICING; PAYMENT TERMS.
The
Pricing for Products and Services to be provided by Vendor pursuant to this
Agreement shall be as set forth in Exhibit
E.
Vendor
and Distributor agree that all payments to Vendor shall be made in accordance
with the provisions incorporated within Exhibit
E.
4. PRODUCT
ORDERS.
4.1 Confidential
Provisions.
Certain
matters with respect to Product Orders, Acceptance, Cancellation, Returns and
Allowances, Minimum Sales, and Regulatory Approvals shall be governed by the
terms and conditions set forth in Exhibit
K
of this
Agreement.
4.2 Supplies
and Deliveries.
Vendor
shall make reasonable efforts to maintain sufficient inventory and supplies
to
enable it to accept delivery times that are commercially reasonable as requested
by Distributor.
4.3 Shipment
Terms.
All
Products shall be shipped by Vendor on behalf of Distributor by appropriate
mode
of transportation in Vendor’s discretion unless Distributor designates a
specific mode of shipment in its purchase order.
4.4 Passage
of Title.
The
parties agree that title to the Products shall not pass to Distributor
but remains with Vendor at all times pursuant to the terms of the Master
Equipment Lease Agreement.
5. INTELLECTUAL
PROPERTY.
5.1 Confidential
Provisions.
Certain
matters with respect to Intellectual Property shall be governed by the terms
and
conditions set forth in Exhibit
L
of this
Agreement.
5.2 Ownership.
Vendor
does and shall continue to own all right, title and interest in and to all
of
its demonstration units, samples, catalogues, promotional literature, patents,
patents pending, Marks, copyrighted works and trade secrets and any other
intellectual property (“Intellectual Property”) that may be provided by Vendor
to Distributor hereunder, including any modifications or derivative works
thereof, whether created by Vendor or Distributor.
5.3 Further
assurances.
Distributor agrees that it shall execute all instruments and documents and
all
things that may be reasonably necessary to protect the rights of Vendor and
vest
in Vendor ownership of the Intellectual Property; and to the extent, by
operation of this Agreement or otherwise, any Intellectual Property rights
of
Vendor shall become vested in Distributor, Distributor agrees that, at the
request and expense of Vendor, Distributor shall execute all instruments and
documents and do all things that may be reasonably necessary to protect the
rights of Vendor and vest or re-vest in Vendor and its assigns all Intellectual
Property rights therein. Distributor’s cooperation with Vendor with respect to
this Section 5.6 shall not be unreasonably withheld.
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6. CONFIDENTIALITY.
6.1 Confidential
Information.
Each
party agrees not to disclose or use any materials or information of the other
party that is marked “Confidential” or, in the case of orally conveyed
information, which is confirmed in writing within thirty (30) days of conveyance
to be confidential (“Confidential Information”) except as may be necessary to
further the performance of this Agreement; provided,
however,
that
the following types of information are always to be considered Confidential
Information only if it specifically relates to the subject matter of this
Agreement and/or the Products: inventions, confidential know-how, trade secrets,
product specifications, customer lists, prices and financial information. Each
party further agrees to take such steps to maintain the confidentiality of
the
other party’s Confidential Information as it takes with respect to its own
similar information. The restriction on disclosure above shall not apply to
that
information which: (a) is already in the public domain; (b) later becomes
publicly available through no fault of the party concerned; (c) is disclosed
to
a party without restrictions by a third party which is not bound by any
restrictions not to disclose such information; (d) a party is obligated to
disclose under a court order or decision by a governmental agency, subject
to
such confidentiality orders, etc.,
as are
available or obtainable under applicable law or regulation; or (e) is disclosed
by a party and does not specifically relate to the subject matter of this
Agreement and/or the Products. The provisions of this Section 6.1 shall survive
the termination or expiration of this Agreement.
6.2 Terms
of this Agreement.
The
parties agree that they shall not disclose any of the terms or conditions of
this Agreement to third parties, except that this provision shall not preclude
either party from announcing the existence of this Agreement or from providing
a
general summary of the intent and purpose of this Agreement as it might affect
the marketing plans of the parties or their customers
6.3 Regulation
FD.
Distributor specifically recognizes and acknowledges that Vendor is subject
to
certain rules and regulations by virtue of its status as a publicly traded
company. As such, Vendor has requested Distributor
to enter
into this Agreement, among other reasons, so that Vendor will be exempt from
any
requirement to disclose any material nonpublic information provided to
Distributor
in
accordance with the exemption set forth in Rule 100(b)(2)(ii) of SEC Regulation
FD. Accordingly, Distributor
further
acknowledges that in the course of the Term of the Agreement, Distributor
and
its
Representatives may become aware of information regarding Vendor that may be
considered “material non-public information” for purposes of the Securities Act
of 1933 and the Securities Exchange Act of 1934 and the Rules and Regulations
promulgated thereunder, including Regulation FD. Distributor
acknowledges
that its or its Representatives’ purchase or sale of securities of the
Vendor
while in
possession of such material non-public information or its or their informing
any
other person of such material non-public information for the purpose of
purchasing, selling or otherwise dealing in securities of the Distributor is
prohibited by law and shall constitute a breach of this Agreement.
Distributor
agrees not to, disclose to any person (i) any material non public information
made available to Distributor or that Distributor has inspected; (ii) that
Distributor is engaged in a financial arrangement with Vendor; or (iii) any
of
the terms, conditions or other facts with respect to the financial arrangement
with Vendor, including the status thereof, without the express written consent
of InforMedix.
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7. WARRANTY;
DISCLAIMER; LIMITATION OF LIABILITY.
7.1 Product
Warranty.
Vendor’s
warranty, as set forth in Exhibit
C
attached
hereto, shall be the sole and exclusive warranty applicable to the Products
and
neither Distributor nor any other person may rely on any other warranties or
representations, nor shall Distributor be permitted to make any other warranties
or representations to Customers. Vendor reserves the right to change the
warranty set forth on Exhibit
C
at any
time with written notice to Distributor.
7.2 Confidential
provisions concerning Disclaimer
of Warranties and Limitation of Liability shall
be
governed by the terms and conditions set forth in Exhibit M
of this
Agreement.
8. INDEMNIFICATION;
INSURANCE.
8.1 Vendor
Indemnity.
Vendor
hereby agrees to defend, indemnify and hold harmless Distributor from and
against any and all claims, demands, actions, costs, liabilities, or losses
arising out of any infringement of any patent, trademark, trade name or
copyright of any third party or violation of any trade secret or other
proprietary rights of any third party by any Product or Vendor Intellectual
Property that has not been modified by Distributor.
Vendor
hereby agrees to defend, indemnify and hold harmless Distributor, its
subsidiaries, parent corporations, affiliates, officers, directors, partners,
shareholders, employees, agents, and their successors and assigns, from and
against any Losses imposed upon Distributor by any third party arising from
or
related to personal injury or property damage which is proximately caused by
(a)
any negligence or intentional misconduct of Vendor (or its employees, agents
or
representatives) in performing its obligations under this Agreement; or (b)
any
material breach of Vendor’s representations and warranties under this
Agreement.
Vendor
hereby agrees to defend, indemnify and hold harmless Distributor, its
subsidiaries, parent corporations, affiliates, officers, directors, partners,
shareholders, employees, agents, and their successors and assigns, from and
against any losses, costs or damages imposed upon Distributor by any third
party
arising from or related to Vendor’s failure to deliver any Products or Services
in accordance with any agreed upon schedule.
8.2 Distributor
Indemnity.
Distributor
hereby agrees to defend, indemnify and hold harmless Vendor, its subsidiaries,
parent corporations, affiliates, officers, directors, partners, shareholders,
employees, agents, and their successors and assigns, from and against any Losses
imposed upon Vendor by any third party arising from or related to personal
injury or property damage which is proximately caused by (a) any negligence
or
intentional misconduct of Distributor (or its employees, agents or
representatives) in performing its obligations under this Agreement; or (b)
any
material breach of Distributor’s representations and warranties under this
Agreement.
8.3 Process.
The
party seeking indemnification shall (a) promptly notify the indemnifying party
in writing of such action, (b) give the indemnifying party sole control over
the
defense of such action and any related settlement negotiations, and (c)
cooperate with the indemnifying party in the defense, (including, without
limitation, by making available to the indemnifying party all documentation
and
information in the control of the party seeking indemnification regarding the
action and by making available personnel to testify and consult with the
indemnifying party). If either party fails to defend and hold harmless the
other
party pursuant to this Section 8, the party to be indemnified may defend the
action and shall be entitled to recover from the other party any and all
expenses, including reasonable attorneys’ fees, incurred by it in
defense.
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8.4 Insurance.
Confidential provisions concerning Insurance
shall
be
governed by the terms and conditions set forth in Exhibit
N
of this
Agreement.
9. TERMINATION.
9.1 Confidential
Provisions.
Certain
matters with respect to Termination shall be governed by the terms and
conditions set forth in Exhibit
O
of this
Agreement.
10. MISCELLANEOUS.
10.1 Relationship
of the Parties.
This
Agreement shall in no way be construed to constitute either party as the
partner, employee or agent of the other party nor shall either party have the
authority to bind the other in any respect, accept service of process or other
notice on the other’s behalf, or make any representation, statement or warranty
by or on behalf of the other, it being intended that each shall remain an
independent contractor responsible only for its own actions.
10.2 Notices.
All
notices, consents and other communications between the parties shall be in
writing and shall be sent to the following addresses (or to such other address
as may be provided to the other party in accordance with this Section 10.2)
by
(a) first class mail, certified or registered, return receipt requested, postage
prepaid, (b) electronic facsimile transmission, (c) overnight couriers services,
(d) telegram or telex or (e) messenger, and shall be deemed given on the third
business day following transmission by mail or the first business day following
delivery by messenger to an overnight courier service, via electronic facsimile
transmission or via telegram or telex:
If
to
Vendor:
C/o
▇▇▇▇▇
▇. ▇▇▇▇, MD
Chairman
and CEO
InforMedix,
Inc.
Georgetowne
Office Park
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Tel:
▇▇▇.▇▇▇.▇▇▇▇
Fax:
▇▇▇.▇▇▇.▇▇▇▇
If
to
Distributor:
▇▇▇▇▇▇
▇.
▇▇▇▇▇
invivodata,
Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel:▇▇▇.▇▇▇.▇▇▇▇
Fax:▇▇▇.▇▇▇.▇▇▇▇
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10.3 Assignment.
The
rights and obligations of either party hereto may not be assigned in any way
without the express written consent of the other party hereto, except that
either Party may assign or transfer this Agreement, in whole or in part, to
any
of its affiliates or to any successors in the case of a merger, reorganization,
acquisition, consolidation, or sale of all, or substantially all, of its capital
stock or assets.
10.4 Governing
Law.
All
questions concerning the validity, operation, interpretation, and construction
of this Agreement and all legal relations arising from this Agreement shall
be
governed by and determined in accordance with the laws of the State of Delaware,
and without reference to any choice of law or conflict of law principles
thereof.
10.5 Jurisdiction.
The
parties agree that all actions or proceedings arising directly, indirectly
or
otherwise in connection with, out of, related to or from this Agreement shall
be
litigated only in federal or state courts located in either the State of
Maryland or the Commonwealth of Pennsylvania at the discretion of the party
who
initiates the action or proceeding.
10.6 Confidential
Provisions concerning
Arbitration, Equitable Remedies, and Survival shall be governed by the terms
and
conditions set forth in Exhibit
P
of this
Agreement.
10.7 Severability.
If
any
provision herein shall be held to be invalid or unenforceable for any reason,
such provision shall, to the extent of such invalidity or unenforceability,
be
severed, but without in any way affecting the remainder of such provision or
any
other provision contained herein, all of which shall continue in full force
and
effect, and provided that the ability of either party to obtain substantially
the bargained-for performance of the other shall not have been thereby impaired.
In such event, the parties shall use their best efforts to replace such
provision with a provision which, to the extent permitted by applicable law,
achieves the purposes intended by the invalid or unenforceable provision. Any
deviation by either party from the terms of the provisions of this Agreement
required to comply with applicable laws, rules or regulations shall not be
considered a breach of this Agreement.
10.8 Force
Majeure.
Except
with respect to payment obligations hereunder, each party shall be excused
from
performance of its obligations hereunder to the extent and for such period
of
time as such performance is prevented by an act of God, fire, flood, earthquake,
transportation disruption, war, insurrection, or other cause beyond the
reasonable control of such party, or labor dispute, provided that the
non-performing party shall provide to the other party prompt written notice
detailing the force majeure event and the non-performing party uses reasonable
efforts to avoid or remove such causes of nonperformance and continues
performance hereunder with reasonable dispatch when such causes are removed.
If
the force majeure event continues beyond a period of thirty (30) days after
receipt of written notice by the performing party, the performing party may,
in
its discretion, terminate this Agreement without recourse from the
non-performing party.
10.9 Counterparts.
This
Agreement may be executed in counterparts, each of which when so executed and
delivered shall constitute a complete and original instrument but all of which
together shall constitute one and the same agreement, and it shall not be
necessary when making proof of this Agreement or any counterpart hereof to
account for any other counterpart.
10.10 Entire
Agreement.
This
Agreement, including the Exhibits attached hereto, constitutes the entire
agreement between Vendor and Distributor concerning the subject matter hereof
and supersedes all prior and contemporaneous agreements between the parties.
No
party is relying upon any warranties, representations, or inducements not set
forth herein.
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10.11 Waiver.
No delay
or failure by either party to exercise or enforce at any time any right or
provision of this Agreement shall be considered a waiver thereof or of such
party’s right thereafter to exercise or enforce each and every right and
provision of this Agreement. A waiver to be valid shall be in writing, but
need
not be supported by consideration. A valid waiver of any provision of this
Agreement with respect to a particular situation or event shall not constitute
a
waiver of such provision with respect to other situations or
events.
10.12 No
Franchise.
Nothing
contained in this Agreement shall be construed to create a franchise or make
either party the franchisee of the other. Distributor hereby releases any claims
that Vendor has violated any franchise disclosure or other franchisor obligation
in connection with the creation of this Agreement.
10.13 Amendment.
The
parties may jointly amend this Agreement or any Exhibit attached hereto by
setting forth the amendment in writing, executing the amendment and attaching
the amendment to this Agreement, the terms of which executed amendment shall
then supersede any conflicting terms herein.
--
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WHEREFORE,
the
parties hereto or their authorized agents have caused this Agreement to be
signed on the day and year first above written.
VENDOR
| By_________________________________ | ||
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Title:
Chief Financial Officer
|
||
|
DISTRIBUTOR
|
||
| By_________________________________ | ||
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Chief Financial Officer
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