EXHIBIT 10.2
MASTER AGENT AGREEMENT
This Agreement is made and entered into by and between Wellscape LLC, an Oregon
Limited Liability Company, with principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and Medivisor, Inc., with principal
offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Agent").
RECITALS:
Whereas, the Company develops and sells software applications for the healthcare
industry; and
Whereas, Agent is in the business of providing solutions to the healthcare
industry, herein after referred to as Agent's "Services", and
Whereas, the Company desires to gain the Services of Agent; and
Whereas, Agent desires to sell such Services.
Now therefore, in consideration of the mutual covenants herein and other good
and valuable consideration given by each party to the other, the receipt and
sufficiency of all of which is hereby acknowledged, the parties hereto hereby
agree as follows:
1. DEFINITIONS
In this Agreement the following terms shall have the following meanings:
A. "Products" shall mean the software applications Smart-PI(R),
Rx-Minder(R), and Physi-Calc(TM) developed by and customized by the
Company (with additional applications to be added in writing at the
Company's discretion)
B. "Agent's Authorized Clients" will include customers to whom Agent (i)
has submitted a proposal and (ii) is diligently pursuing the execution
of a purchase agreement for Product. If a purchase agreement and
deposit for Product are received from a customer within 180 days of
the proposal submittal, the customer shall remain Agent's Authorized
Client for a period of one year from the Company's receipt of the
purchase agreement and deposit or, if sooner, the termination or
expiration of this Agreement.
C. "Program" means the entire package of components and services that
Agent is providing to Agent's Authorized Client. In addition to
Products, the components of each Program may include but are not
limited to CD production, direct mail development and printing,
fulfillment, creative, mail services and collateral packaging and
materials.
D. "Retail Pricing" shall mean the amount the Agent is paid for sales
made on Products (see Exhibit 2).
E. "Sales Commission" shall mean the amount the Agent is paid for sales
made on Products (see Exhibit 2).
F. "Confidential Information" shall include, but not be limited to, trade
secrets, technical information, technological information, computer
programs and related documentation, specifications, designs, drawings,
concepts, ideas, methods, business plans, business strategies,
projections, prices, research information, financial information,
customer lists, customer information and data and all other materials
and information not generally known to others or which have otherwise
been maintained in confidence by the Company.
G. "Master List of Authorized Client" shall mean the list posted on the
Company's website showing Agent's Authorized Clients and the
Authorized Clients of all other agents and other sales entities for
the Company, as amended from time to time by the Company.
H. "Purchase Agreement" shall mean the Company's purchase agreement
template, including the terms and conditions on the back or attached
to the template in the form of Exhibit 3.
2. GRANT AND TERM OF REPRESENTATION
A. On the terms provided herein, Company Hereby appoints Agent as its
exclusive agent for sale of Products to Agent's Authorized Clients,
and Agent hereby accepts this appointment.
B. Unless sooner terminated in accordance with the provisions hereof, the
initial term of this Agreement shall be a period of 12 months from the
date this Agreement is executed.
C. Unless sooner terminated in accordance with the provisions hereof,
this Agreement will be renewed automatically each year thereafter.
D. Agent shall sell a minimum of $200,000 at Retail Pricing during each
contract year.
3. AGENTS GENERAL OBLIGATIONS
Agent shall:
A. Devote its diligent efforts to promoting and selling the Products.
B. Distribute sales brochures and other information describing the
Products.
C. Maintain accurate and complete records concerning current and
prospective Authorized Clients which have purchased or express
interest in purchasing the Products.
D. Follow up on inquiries and price quotations.
E. As Agent identifies new opportunities not included on the Master List
of Authorized Clients, Agent will contact Company to discuss in order
to coordinate sales efforts across agents and other sales entities.
F. Submit proposals to Authorized Clients and contemporaneously send a
copy of each such proposal to the Company.
G. After a proposal has been submitted to an Authorized Client,
diligently pursue the closing of the sale.
H. Receive Purchase Agreements for Product in the form attached as
Exhibit 3, and with each Purchase Agreement, Agen shall collect a
"Deposit Fee" equal to 50% of the total Retail Price for Product
ordered and deliver the same to the Company.
I. Communicate on a consistent basis with each Authorized Client in order
to determine level of satisfaction with Products, and notify Company
of all complaints and problems with respect to quality, price or
support relative to the Products.
J. Conduct any and all sales activities in connection with the Products
in a lawful manner and use its commercially reasonable efforts to
enact and carry out a merchandising policy designed to preserve the
good will of the Company and the Products.
K. Agent agrees to only present Retail Pricing to potential clients. If
special pricing is required for a specific Program, Agent agrees to
request this pricing in writing before presentation to potential
clients.
L. Refrain from selling or promoting the Products to any entity included
on the Company's Master List of Authorized Clients unless the entity
is one of Agent's Authorized Clients.
M. Refrain from selling or promoting any directly competitive software
products.
4. COMPANY'S GENERAL OBLIGATIONS
Company shall:
A. Work diligently with Agent's Authorized Clients to deliver Products
resulting from orders as a result of Agent's efforts.
B. During the term of this Agreement and so long as Agent is not in
breach of any provision of this Agreement, refrain from conducting any
selling efforts on its own or through other agents to Agent's
Authorized Clients.
C. Timely respond to all requests for information and pricing by Agent.
D. Maintain and update from time to time the Master List of Authorized
Clients.
E. Update from time to time the Retail Pricing (Exhibit 1).
F. Update from time to time the Purchase Agreement (Exhibit 3).
5. PRICING
A. Company will provide to Agent an initial Retail Price list, herein
attached as Exhibit 1.
B. Company reserves the right to change Retail Pricing at any time with
the understanding that any Retail Pricing already provided in any
pending Program proposals to Agent's Authorized clients will remain
unchanged.
6. SALES COMMISSION
During the term of this Agreement, Company shall pay Agent commissions on
the sale of Product to Agent's Authorized Clients in accordance with
Exhibit 2 to this Agreement.
7. CONFIDENTIAL INFORMATION
Agent shall neither use nor disclose to any third parties any confidential
Information concerning the business affairs or the Products of Company
which Agent may acquire during the course of its activities under this
Agreement. In addition, Agent shall take any and all necessary precautions
to prevent any such disclosure by its employees, officers, directors,
Agents or agents. Agent further acknowledges and understands that any
right, title and interest in and to the Confidential Information is vested
in Company and that such information is the sole property of Company.
8. TRADEMARKS, PATENTS AND COPYRIGHTS
Agent hereby acknowledges the Company's exclusive right, title and interest
in and to any and all trademarks, whether or not registered with the US
Patent and Trademark office (PTO) ("Trademarks"): copyrights, whether or
not registered with the US Copyright Office ("Copyrights"): patents,
including any pending patent applications ("Patents"), which the Company
may at any time have used, adopted or acquired. Agent agrees that it shall
not do, or cause to be done, any acts or things contesting or in any way
impairing or tending to impair any portion of Company's right, title and
interest in and to the Trademarks, Patents and Copyrights. Agent further
acknowledges that, in connection with any reference to the Trademarks,
Patents and Copyrights, Agent shall not in any manner represent that it
possesses any ownership interest in the Trademarks, Patents and copyrights
or the registration thereof, nor shall any action taken by Agent or on
Agent's behalf create in Agent's favor any right, title or interest in and
to the Trademarks, Patents and Copyrights
9. NON LIABILITY OF COMPANY
Company shall not be responsible for any claim, demand, loss, expense or
liability of any kind, including without limitation, special, consequential
or indirect damages, relation to or arising from any loss by Agent from the
sale of Products under this Agreement, including without limitation loss of
present or prospective profits, anticipated sales, or expenditures by
Agent.
10. INDEMNITY
Agent shall indemnify the Company and hold the Company harmless from and
against, and shall defend against, any and all claims and damages of every
kind for injury to or death of any person or persons and for damage to or
loss of property, arising out of or attributed, directly or indirectly, to
the acts or omissions of Agent. In addition, Agent shall at all times
during the term hereof maintain appropriate liability insurance covering
all Products sold by Agent to its customers in aggregate limits of at least
$1,000,000.00 per occurrence, which policies shall name the Company as an
additional insured. Agent shall provide the Company with a true copy of
said insurance policy upon request.
The Company shall indemnify Agent and hold harmless Agent from and against
and shall defend against any and all claims and damages of every kind
including but not limited to copyright, copy patent and trademark
infringement and for injury to or death of any person or persons and for
damage to or loss of property, arising out of or attributed, directly or
indirectly, to the acts or omissions of the Company. In addition, The
Company shall at all times during the term hereof maintain appropriate
liability insurance covering all Products sold by the Company in aggregate
limits of at least $1,000,000.00 per occurrence, which policy shall name
Agent as Additional Insured. The Company shall provide Agent with a true
copy of said Insurance Policy upon request.
11. ASSIGNMENT
Neither party shall assign this Agreement without the prior written consent
of the other party, which consent shall not be unreasonably withheld or
delayed.
12. INDEPENDENT CONTRACTOR RELATIONSHIP
Agent agrees that, with respect to all matters relating to this Agreement,
Agent shall be deemed to be an independent contractor and shall bear all of
its own expenses in connection with this Agreement. Agent shall have no
authority, whether neither express nor implied, to assume or create any
obligation on behalf of Company nor shall Agent issue or cause to be issued
any quotations or draft any letters or documents over the name of the
Company.
13. TERMINATION OF AGREEMENT
A. By Company, The Company may terminate this Agreement without prejudice
to any other remedy to which it may be entitled as follows:
i. Immediately upon notice from the Company: if Agent is adjudicated
a voluntary or involuntary bankrupt; if Agent becomes insolvent
or has receiver of its assets or property appointed; or if Agent
makes an assignment for the benefit of creditors.
ii. Upon 30 days notice in the event of any default or breach of
Agent's obligations under this Agreement, unless said default or
breach is cured by Agent within said 30 day period.
iii. Upon 30 days prior written notice to Agent at the discretion of
the Company; provided, however, that the Company shall pay Agent
the Sales Commission owed
under Exhibit 2 for all Product delivered after the effective
date of termination on Purchase Agreements entered into with 50%
deposits made prior to the effective date of termination. In
order for Agent to receive te Sales Commission post termination
as provided in the section, Agent must continue to provide the
services required under Section 3 of this Agreement to Agent's
Authorized Client [s] identified in the Purchase Agreement [s]
through the final invoice date.
B. By Agent. Agent may terminate this Agreement without prejudice to any
other remedy to which it may be entitled as follows:
i. Immediately upon notice from Agent: if the Company is adjudicated
a voluntary or involuntary bankrupt; if the Company becomes
insolvent or has a receiver of its assets or property appointed;
or if the Company makes an assignment for the benefit of
creditors.
ii. Upon 30 days notice in the event of any default or breach of the
Company's obligations under this Agreement, unless said default
or breach is cured by the Company within said 30 day period.
iii. Upon 30 days prior written notice to the Company at the
discretion of Agent.
14. CHOICE OF LAW
All disputes concerning the validity, interpretation, or performance of
this Agreement and any of its terms or provision, or of any right or
obligations of the parties hereto, shall be governed by and resolved in
accordance with the laws of the state of Oregon.
15. NOTICES
Any notice or communication required or permitted to be given under this
Agreement may be delivered by hand, deposited with an overnight courier,
sen by email with receipt conformation, confirmed facsimile transmission,
or mailed by registered or certified mail, return receipt requested,
postage prepaid, in each case to the address of the receiving party. Such
notice will be deemed to have been given as of the date it is delivered,
emailed or faxed, whichever is earlier.
16. WAIVER AND DELAY
No waiver by any party of any breach or series of breaches or defaults in
performance by the other party, and no failure, refusal or neglect of
either party to exercise any right, power or option given to it hereunder
to insist upon strict compliance with or performance of either party's
obligations under this Agreement, shall constitute a waiver of the
provisions of this Agreement with respect to any subsequent breach thereof
or a waiver by either party of its right at any time thereafter to require
exact and strict compliance with the provisions thereof.
17. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the parties hereto, subject to the restrictions
on assignment contained herein.
18. ENTIRE AGREEMENT
This Agreement contains all of the terms and conditions agreed upon by the
parties hereto with reference to the subject matter hereof. No other
agreements, oral or otherwise, shall be deemed to exist or to bind any of
the parties hereto, and all prior agreements and understanding are
superseded hereby. This Agreement cannot be modified or changed except by
written instrument signed by each of the parties hereto.
19. HEADINGS FOR CONVENIENCE
Titles used in this Agreement are for convenience only and shall not be
deemed to affect the meaning or construction of any of the terms,
provision, covenants, or conditions of this Agreement.
20. SEVERABILITY
Nothing contained in this Agreement Shall be construed as requiring the
commission of any act contrary to law. Whenever there is any conflict
between any provision of this Agreement and any present or future statute,
law, ordinance or regulation contrary to which the parties have no legal
right to contract, the latter shall prevail, but in such event the
provision of this Agreement thus affected shall be curtailed and limited
only to the extent necessary to bring it within the requirements of the
law. In the event that any part, article, section, paragraph, sentence or
clause of this Agreement shall be held to be indefinite, invalid or
otherwise unenforceable, the indefinite, invalid or unenforceable provision
shall be deemed deleted, and the remaining part of the Agreement shall
continue in full force and effect. If any tribunal or court of competent
jurisdiction deems any provision hereof unenforceable, such provision shall
be modified only to the extent necessary to render it enforceable and this
Agreement shall be valid and enforceable and the parties hereto agree to be
bound by and perform same as thus modified.
21. MEDIATION, ARBITRATION.
In the event of any dispute or claim arising out of or relating to this
Agreement or to the interpretation or breach thereof, it is agreed that
such dispute or claim will be submitted to a mediator, agreed to and
compensated equally by both parties, prior to commencement of arbitration.
Mediation will be conducted in Eugene, Oregon. Both parties agree to
exercise their best efforts in good faith to resolve all disputes in
mediation.
In the event that mediation is not successful in resolving any dispute or
claim arising out of or relation to this Agreement, or to the
interpretation of any breach thereof, it is agreed that the dispute or
claim shall be resolved by binging arbitration in accordance with the then
effective rules of the American Arbitration Association, and a judgment
upon the award rendered pursuant to such arbitration may be entered in any
court having jurisdiction thereof. The parties shall have the right to
discovery and joinder of parties and claims in accordance with the Oregon
Rules of Civil Procedure.
In the event suit or action is brought, or arbitration proceeding is
initiated to enforce or interpret any of the provisions of this Agreement,
or tat is based thereon, the prevailing party shall be entitled to its
reasonable attorney fees in connection therewith. The determination of who
is the prevailing party and the amount of reasonable attorney fees to be
paid to the prevailing party shall be decided by the arbitrator (with
respect to attorney fees incurred prior to and during the arbitration
proceedings) and by the court or courts, including any appellate court, in
which such matter is tried, heard or decided, including a court that hears
a request to compel or enjoin arbitration or that hears any exceptions made
to an arbitration award submitted to it for confirmation as a judgment
(with respect to attorney fees incurred in such proceedings). In the event
that a judgment, decree, order or award.
22. CONSTRUCTION
Each party intends that this Agreement in all respects shall be deemed and
construed to have been prepared mutually by all parties and it is hereby
expressly agreed that any uncertainty or ambiguity existing herein shall
not be construed against any party.
23. COUNTERPARTS
This Agreement may be executed in several counterparts, including facsimile
counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one agreement binding on the parties
hereto, notwithstanding that all the parties have not signed the same
counterpart.
IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND the parties have executed
this Agreement by their respective authorized officers.
The effective date of this Agreement is the 11th day of February, 2005.
AGENT: COMPANY:
Medivisor, Inc.. WELLSCAPE LLC.
____________________________________
(company name)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
____________________________________ _______________________________
By: (signature) By: (signature)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
____________________________________ _______________________________
Name: Name:
President
____________________________________ _______________________________
Title: Title:
2/11/2005
____________________________________ _______________________________
Date: Date:
EXHIBIT 2
SALES COMMISSION
Sales commissions shall be paid at 25% of Company's gross receipts (not
including reimbursement for taxes of shipping cost) from the sale of Products to
Agent's Authorized Clients based on Retail Pricing as shown in Exhibit 1.
Commission Bonus: A 5% retroactive bonus will be paid once the Sales Agent
achieves $200,000 in new revenue in a given contract year. The contract year
starts the day the Master Agent Agreement is singed and on each anniversary date
of the signing.
Payments:
Company shall make commission payments to Agent on or prior to the 15 day of the
month immediately following the Company's receipt of payment from Agent's
Authorized Clients.
Additional Terms:
1. Agent will be required to collect the 50% deposit with each Purchase
Agreement. (Exhibit 3)
2. Agent is required to write all orders on the Purchase Agreement form and
send directly to Company for processing. Agent will indemnify Company from
any liability and cost relating to Purchase Agreements improperly filled
out and or incorrect information.
3. It is understood that on a case-by-case basis, with Company's prior written
consent certain selected accounts may be negotiated pricing; however, that
could affect commission percentages.
4. No commissions are paid on Annual or Monthly Maintenance fees or Language
Translation fees.