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Terms & Conditions
THIS DISTRIBUTOR AGREEMENT (“Agreement”) is made as of this date (the “Effective Date”), by and between Seller (“Manufacturer”), and Healthcare Asset Network, Inc., with its principal place of business at 9418 Norton Commons Blvd., Suite 200, Prospect, Kentucky 40059 (“Distributor”).
WHEREAS, Manufacturer desires, subject to the terms and conditions of this Agreement, to grant Distributor the right to use, resell, distribute and market the products (“Product(s)”) described on Exhibit A in the territories described below, and Distributor desires to accept such grant.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows:
(a) Territory. Manufacturer hereby grants to Distributor the non-exclusive right, during the Term (as defined below) of this Agreement, to use, sell, resell, distribute and market the Products within the United States or global locations as agreed upon by both parties (the “Territory”).
(b) Sales Representatives and Sub-Distributors. Distributor shall be permitted to appoint sales representatives and sub-distributors to perform any of Distributor's obligations under this Agreement.
This Agreement shall continue in full force and effect subject to the provisions of Section 8.
3. Purchase Terms.
(a) Manufacturer shall sell to Distributor all Products ordered by Distributor or Distributor’s customers via purchase orders and shall deliver such Products EXW manufacturer’s facility in the U.S.A. (Incoterms 2010). Distributor shall arrange for the Products to be shipped to Distributor’s customers from such location. Manufacturer shall deliver to Distributor all orders in full by the delivery dates stated on purchase orders unless otherwise agreed in writing by the parties. Distributor reserves the right, without liability or waiver of any other remedies available to Distributor, if Manufacturer cannot timely deliver the Products or if Manufacturer is in default, to approve a new delivery schedule, or to cancel, in whole or in part, a purchase order or this Agreement.Manufacturer shall promptly notify Distributor of any delay or of any anticipated delay in delivery of the Products.
(b) For Products that are non-capitalized supplies (e.g., draping), Manufacturer shall invoice Distributor and Distributor shall pay such invoice net 30 days. For Products that are capitalized equipment (e.g., beach chairs), Manufacturer shall invoice Distributor and Distributor shall pay such invoice fifty percent (50%) within 15 days after platform transaction and fifty percent (50%) within 15 days after such Products are shipped and final invoice received. Payments shall be made by electronic funds transfer, to Manufacturer’s nominated account, unless otherwise agreed by the parties.
(c) The price for the Products shall be as described in Exhibit A. The pricing will not change unless Manufacturer provides Distributor with 30 days prior written notice of any such change. Manufacturer warrants that the price and terms given Distributor always shall be as favorable as those given any other distributor or customer of Manufacturer for similar products. Further, if Manufacturer’s list or published price for any similar product or for the Products decreases, Manufacturer immediately shall ensure Distributor has the lowest price charged to any of Manufacturer’s other distributors or customers.
(d) Distributor may make changes to a purchase order, including to any quantity, instruction, drawing, destination, delivery schedule (subject to Section 3(a)) or method of transportation relating to any goods furnished hereunder, and Manufacturer shall comply with any such change. If any such change affects the price of the Products furnished hereunder or the time required for Manufacturer’s performance under the purchase order, a corresponding adjustment in the price or delivery schedule or both may be made if agreed in advance and in writing by Distributor. All claims for adjustments in Manufacturer’s favor shall be made by Manufacturer to Distributor in writing within ten (10) business days after the change to which the adjustment relates is made, or Manufacturer forgoes any such adjustment, and no such adjustment shall be binding upon Distributor unless Distributor has agreed in writing and in advance to the same.
(e) Distributor may terminate a purchase order at its convenience by written notice to Manufacturer in which event it may discharge all its obligations by payment of the lesser of reasonable charges for work completed against the purchase order at the time of termination, the completion of which is supported by evidence reasonably acceptable to Distributor, or a restocking charge not to exceed twenty (20%) of the price for any such cancelled or returned Product.
(f) Subject to Section 7(e), all goods are subject to inspection and acceptance. Such inspection will be made within a reasonable time after delivery. Any goods furnished in fulfillment of a purchase order that are not in compliance with the warranties or other provisions hereof, or are shipped contrary to instructions, or in excess of quantities ordered, or are substituted for merchandise specified, or allegedly violative of any law, rule or regulation, may be rejected by Distributor and returned at Manufacturer’s expense. All expenses of unpacking, examining, repacking, storing and reshipping any goods rejected as aforesaid, and any shipment of replacement goods by Manufacturer shall be at Manufacturer’s expense.
(g) Distributor reserves the right to change commission structure at any time with approval by Manufacturer.
(a) “Trademark(s)” shall mean all present and future trademarks, service marks, trade names, logos, slogans, insignias, symbols and the like and registrations thereof, which are owned by Manufacturer or which Manufacturer has the right to use, including, without limitation, “Seller’s Legal Name”. Manufacturer hereby grants to Distributor a royalty-free, non-exclusive license to use the Trademarks solely in connection with the use, sale, resale, distribution and marketing of Products hereunder. Any and all use of any Trademark shall inure to the sole benefit of Manufacturer. In addition, Distributor shall not do any act or thing which shall or might endanger or impair the value of any such Trademarks.
(b) The Products when sold to Distributor shall bear Trademarks, as specified by Manufacturer to Distributor from time to time, which shall remain the sole property of Manufacturer. During the Term and during the Wind-Down (as defined below), Distributor may publicly indicate that it is Manufacturer’s distributor for Products in advertising and promoting the sale of Products. Distributor may display and provide advertising or promotional materials prepared by Manufacturer or Distributor (with prior approval from Manufacturer which approval shall not be unreasonably withheld). Distributor will promptly discontinue the use of the Trademarks on any signs, websites, displays or advertising materials or in its legal name or otherwise at the end of the Term of this Agreement or upon the termination of the relationship between Manufacturer and Distributor.
5. Duties and Obligations of Distributor.
Distributor shall at all times observe and perform the terms and conditions set out in this Agreement. In particular, Distributor shall:
(a) Sales. Use reasonable efforts to promote and sell Products in the Territory to potential customers thereof and work to obtain orders therefor: (i) by allocating personnel to meet its obligations under this Agreement; (ii) by means of correspondence with customers and potential customers; and (iii) by promotion, advertising and distribution of printed matter.
(b) IP Protection. Bring to the attention of Manufacturer any improper or wrongful use of Manufacturer’s proprietary rights and assist Manufacturer at the request and expense of Manufacturer and for the account of Manufacturer in taking all reasonable steps to defend the proprietary rights and interests of Manufacturer.
(c) Sales Leads. Follow all reasonable sales leads provided by Manufacturer.
6. Manufacturer’s Duties and Obligations.
Manufacturer shall at all times observe and perform the terms and conditions set forth in this Agreement. In particular, Manufacturer shall:
(a) Sales and Technical Support. Assist Distributor, upon request, with all advertising, sales, promotion, and marketing campaigns for the Products and provide Distributor with all technical information and assistance regarding the Products.
(b) Shipping Support. Assist Distributor, upon request, with the coordination and logistical support to ship the Products from their place of delivery described in Section 3(a) above to their place of delivery with Distributor’s customers.
(c) Product Changes. Provide Distributor thirty (30) days’ prior written notice of any desired change in the Products, unless Distributor in writing agrees to a shorter notice in a particular instance, and at any time discuss with Distributor any changes Distributor suggests.
(d) Order Fulfillment. Timely fill all purchase orders of Distributor.
(e) Insurance. Provide general liability insurance for coverage in the Territory, including blanket contractual and products liability, with limits of no less than $2,000,000 per occurrence and $2,000,000 in the aggregate, naming Distributor as an additional insured; and, on Distributor’s request, provide a certificate(s) of insurance evidencing compliance with this Section 6(f) and providing that such insurance cannot be amended or changed without thirty (30) days’ prior written notice to Distributor. Such insurance shall be written on an occurrence based policy with a financially secure insurance company satisfactory to Distributor.
(a) Manufacturer hereby warrants that it has good and clear title to the Products and the right to sell the Products to Distributor. Manufacturer warrants the Products do not infringe any proprietary rights of any third party.
(b) Manufacturer warrants that the Products will have no defect in materials or workmanship, be merchantable, be fit for their particular purpose, and perform in accordance with the applicable specifications agreed upon by Distributor and Manufacturer from time to time (collectively, “Specifications”) until one (1) year/months following the sale of a Product to the retail purchaser of such Product. Distributor and retailers shall pass through Manufacturer’s warranties to the retail purchaser of the Products. In the event the Products do not satisfy Manufacturer’s warranties hereunder, then during the warranty period, Manufacturer shall at Distributor’s option: (i) immediately replace the Products (shipped DDP (Incoterms 2010) to a point of destination designated by the Distributor), with conforming Products free of charge; or (ii) refund all payments therefor; or (iii) remedy the situation to the satisfaction of the customer and agreed upon in writing by both Manufacturer and Distributor.
(c) Nothing used in the manufacture of the Products covered by this Agreement will contain any material deemed to be toxic or hazardous pursuant to any applicable rule, regulation, statute, ordinance or court ruling. Manufacturer will comply, in the performance of this Agreement, with all applicable federal, state, local, foreign and other governmental laws and regulations.
(d) Manufacturer warrants that all Products will comply with all applicable federal, state, local, foreign and other governmental laws and regulations.
(e) In no event will the inspection and acceptance of any Product pursuant to this Agreement, the failure to inspect any Product or the payment for any Product, in any way impair or reduce Distributor’s rights under this Agreement, at law or in equity, including warranty obligations of Manufacturer and Distributor’s rights to further inspection or testing.
(f) Manufacturer will ensure that the Products and the packaging for the Products meets or exceeds US transits requirements as requested by Distributor, Distributor’s customers and/ or major shipping companies such as UPS and FedEx.
(a) Either party may promptly terminate this Agreement in writing if the other party fails to observe or perform any of the material terms and conditions of this Agreement on its part to be observed or performed, and such default has not been corrected or remedied within sixty (60) days after written notice of such default.
(b) Either party shall be entitled to terminate this Agreement upon written notice to the other party if such party shall (i) become insolvent, however evidenced, (ii) make a general assignment for the benefit of creditors, (iii) file or have filed against it a petition in bankruptcy, for reorganization or similar arrangement, or for a receiver, trustee or similar representative for such party’s property or assets or any part thereof, or (iv) file or have filed against it any other proceeding under any insolvency law, and in any of such cases the proceeding shall not have been dismissed or discharged within thirty (90) days thereof.
(c) The parties also may terminate this Agreement at any time by mutual written agreement.
(d) Upon expiration or termination hereof for any reason, Manufacturer shall fulfill all outstanding Distributor and customer purchase orders not withdrawn under the applicable provisions hereof, and Distributor and its customers shall be entitled to sell the remaining balance of its inventory of the Products (the “Wind-Down”).
(a) Manufacturer Indemnity. Manufacturer shall indemnify and hold Distributor, and its employees, directors and officers, sub-distributors, sales representatives and customers harmless from and against all losses, penalties, demands, claims, costs, judgments, damages, expenses, liabilities, recoveries and fees, including attorneys’ fees, arising from: a defect in the Products; Manufacturer’s failure to comply with any law applicable in the Territory; or a breach by Manufacturer of this Agreement.
(b) Distributor’s Indemnity. Distributor shall indemnify and hold Manufacturer, and its employees, directors and officers, harmless from and against all losses, penalties, demands, claims, costs, judgments, damages, expenses, liabilities, recoveries and fees, including attorneys’ fees, arising from Distributor binding Manufacturer to warranties beyond that provided in Section 7 above or a breach by Distributor of this Agreement.
(a) The performance of the activities provided for in this Agreement may require Manufacturer to disclose to Distributor, and Distributor to disclose to Manufacturer, certain confidential or proprietary information, including, but not limited to, trade secrets or other like information of business value, whether relating to production knowledge and processes, marketing methods, customer lists, or other matters (the "Confidential Information"). In consideration of Manufacturer’s disclosure of Confidential Information to Distributor, and Distributor's disclosure of Confidential Information to Manufacturer, each party shall (i) make no use of Confidential Information disclosed by the other party except for itself and its employees and agents to carry out its activities provided for in this Agreement; (ii) not disclose the Confidential Information to third parties; (iii) take such precautions as it normally takes with its own confidential and proprietary information, but no less than reasonable precautions, to prevent disclosure of Confidential Information to third parties; and (iv) return all documents containing Confidential Information, and return or destroy all copies thereof, upon the written request of the other party.
(b) Notwithstanding any of the foregoing, Confidential Information shall not include (i) any information which, at the time of disclosure by one party to the other, is publicly available or in the public knowledge; (ii) any information which, after disclosure by one party to the other, lawfully becomes part of the public knowledge through publication or otherwise, but through no fault of the receiving party; (iii) any information which the receiving party possesses at the time of disclosure by the disclosing party and which was not acquired directly from the disclosing party; (iv) any information acquired by the receiving party from a third party who has a right to disclose such information; and (v) any information independently developed by the receiving party or its employees without knowledge of the disclosure from the disclosing party.
(c) The parties hereto hereby declare that it is impossible to measure in money the damages that will accrue by reason of a failure to perform any obligations under Section 10 of this Agreement. Therefore, if a party shall institute any action or proceeding to enforce the provisions of Section 10, the defendant in such action or proceeding hereby consents to an injunction, specific performance or other equitable remedy and waives the claim or defense that the plaintiff therein has or had an adequate remedy at law, and waives the requirement of the posting of a bond, and such defendant shall not raise such claim or defense in any such action or proceeding.
11. Applicable Law.
This Agreement shall be governed my the laws of the Commonwealth of Kentucky, without regard to conflicts of laws principles. Each party hereto irrevocably consents to the exclusive general jurisdiction and venue of the state and federal courts located in Jefferson County, Kentucky for the resolution of any and all disputes arising hereunder or related hereto; provided however, that either party may pursue collection or equitable remedies in any jurisdiction necessary to enforce its rights hereunder.
12. Assignment, Actions.
Neither party will assign, transfer or encumber its rights or obligations under this Agreement without the express written consent of the other party, which consent shall not be unreasonably withheld.
Any notice, demand, or request required or permitted to be given hereunder shall be in writing and shall be effective on receipt if sent by certified mail or commercial courier, in all cases, prepaid with proof of transmission, to the address set forth in the first paragraph of this Agreement. The parties may change the address set forth above from time to time, provided that any such change shall be effective only upon receipt of notice in writing by the other party of the change.
14. Modifications and Waivers.
No modification or amendment to this Agreement shall be of any force or effect unless in writing and signed by both parties hereto. No waiver of any term or condition of this Agreement shall constitute a waiver by either party of any of its rights hereunder on a similar or later occasion.
In the event that any word, phrase, clause, sentence or other provision herein shall violate any applicable statute or rule of law in any particular circumstance or governing jurisdiction, such provision shall be ineffective to the extent of such violation without affecting the validity or enforceability of such provision in any other jurisdiction or circumstance or of any other provision herein.
16. Entire Agreement.
This Agreement and its Exhibits constitutes the entire agreement between the parties hereto, and supersedes all prior statements, promises, understandings, or agreements. Manufacturer’s terms and conditions shall have no binding effect on the parties hereto.
The enforceability of Sections 3, 4(b), 7, 8(d), 9-12, 13 and 17 of this Agreement shall survive the expiration or termination of this Agreement for any reason.
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. This Agreement may be signed by facsimile signatures or other electronic delivery of an image file reflecting the execution hereof, and, if so signed: (a) may be relied on by each party as if the document were a manually signed original and (b) will be binding on each party for all purposes.
Prices and products shall be agreed upon with Distributor and connected to Distributor platform in an automated fashion.