EXHIBIT 10.9
MARKETING REPRESENTATIVE AGREEMENT
THIS
MARKETING REPRESENTATIVE AGREEMENT (this
“Agreement”) is made and entered into this 7th day
of July, 2006 (the “Effective Date”), by and
between AMERISOURCEBERGEN CORPORATION, a Delaware corporation
having an address at 1300 Moms Drive, Chesterbrook, PA
19087-5594 (“ ABC
”), and MOUNTAIN CAPITAL, LLC, doing business as ARROW
MEDIA SOLUTIONS, a New York limited liability company having
an address at 1927 Saranac Avenue, Suite 2, Lake Placid, New
York 12946 (“ AMS
”).
RECITALS:
A. AMS
has developed and sells various kiosks to transfer digital
images (each a “ Kiosk
”) along with various accessories including, but not
limited to, dyes, printers, paper and software (the “
Accessories
”).
B. AMS
desire to appoint ABC, and ABC desires to accept such
appointment, as a marketing representative for the sale of
Kiosks to ABC’s customers (each an “ End User
”), in accordance with the terms and conditions of this
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and intending to be legally bound
hereby, the parties agree as follows:
Section
1.
Definitions
. Except for me terms defined elsewhere in this Agreement, the
following terms shall have the meanings specified
below:
“
ABC
Account Number ” shall mean an End User’s
account number with ABC through which such End User may
purchase one or more Kiosk Packages.
“
End
User Price ” shall mean the price that ABC
charges to an End User for the purchase of a particular Kiosk
Package.
“
Kiosk
Package ” shall mean the Kiosk(s), Accessories
and Services sold together to an End User pursuant to this
Agreement.
“
Kiosk Purchase
Agreement ” shall mean that certain purchase
agreement attached hereto as Exhibit B pursuant to which one
or more Kiosk Packages are sold to an End User.
“
Kiosk Purchase
Price ” shall mean that price charged by AMS to
ABC for a Kiosk Package or a number of Kiosk Packages as set
forth in Exhibit A attached hereto.
“
Leasing
Company ” shall mean any Person that provides
leasing or financing to End Users for the lease, lease to
purchase or purchase of one or more Kiosk
Packages.
“
Person
” shall mean an individual, corporation, partnership,
trust, association, entity or governmental
authority.
“
Services
” shall mean those installation, training, warranty, and
maintenance and support services provided by AMS to End Users
pursuant to the Kiosk Purchase Agreement.
“
Term
” shall have the meaning ascribed thereto in Section 8.1
of this Agreement
Section
2.
Grant of
Rights .
2.1
Appointment as
Marketing Representative . During the Term of this
Agreement and except as otherwise provided in this Agreement,
AMS hereby appoints ABC as a marketing representative for the
sale of Kiosk Packages to ABC customers and ABC accepts such
appointment.
2.2
License to End
Users . ABC shall arrange for the sale of the Kiosk
Packages to ABC customers and for each sale of one or more
Kiosk Packages to an ABC Customer each End User shall be
required to execute a Kiosk Purchase Agreement.
2.3
Ownership
. As between AMS and ABC, AMS owns and retains all right,
title and interest in and to (i) the Kiosk Packages; (ii) all
trademarks, service marks and trade names of AMS associated
with the Kiosk Packages (the “ AMS
Trademarks ”); and (iii) all copyrights, patents,
trade secret rights and other intellectual property associated
with the Kiosk Packages (the “ Intellectual
Property ” and collectively with the Kiosk
Packages and the AMS Trademarks, the “ AMS
Property ”).
2.4
Use
of the Trademarks . During the Term of this Agreement,
ABC shall have the right to use and reproduce the AMS
Trademarks in connection with ABC’s advertising,
marketing and promotion of the Kiosk Packages. If ABC, in the
course of exercising its rights under this Agreement acquires
any goodwill or reputation in any of the AMS Trademarks, all
such goodwill or reputation shall be transferred to and shall
vest in AMS when and as, on an ongoing basis, such acquisition
of goodwill or reputation occurs, as well as at the expiration
or termination of this Agreement, without any separate payment
or other consideration of any kind to ABC, and ABC agrees to
take upon AMS’s request, any commercially reasonable
actions necessary to effect such vesting.
Section
3.
Pricing and
Payment .
3.1
Purchase of
Kiosk Packages by End Users .
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3.1.1
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Purchase Through ABC Account Number . During the Term of
this Agreement, if an End User purchases one or more Kiosk Packages
using its ABC Account Number, then for each of these End User
purchases AMS will invoice ABC less then the retail price of the
Kiosk Packages. The % discount is based off of the following
schedule;
|
For
a member of the Good Neighbor Pharmacy program (“GNP
Program”), AMS will invoice ABC ***% of the “GNP
Price” per the provided price list from
AMS.
____________
***
Redacted pursuant to a Confidentiality Request
with the United States Securities and Exchange
Commission
For
non-GNP customers, AMS will invoice ABC ***% of “non-GNP
Price” per the provided price list from
AMS.
When
requested and approved, each in writing, ABC will allow AMS
permission to lower the retail price for a promotion or
special event pricing.
3.1.2 AMS
will invoice ABC for the end user’s purchase and ABC
will bill thru the amount of the purchase to the applicable
End User with a standard payment term of 30 days, for
reimbursement to ABC, ABC will pay AMS within 30 days upon
receiving an invoice.
3.1.3
Purchase Other
Than Through ABC Account Number . During the Term of
this Agreement, if an End User purchases one or more Kiosk
Packages other than through their ABC account (e.g., a lease,
cash, check), then for each of these End User purchases AMS
will pay to ABC a rebate off the purchase price for each Kiosk
Package, The % rebate is based on the following
schedule:
For
GNP customers, AMS will pay to ABC a ***% rebate off the
“GNP Price” per the provided price list from
AMS.
For
non-GNP customers, AMS will pay to ABC a ***% rebate off the
“non-GNP Price” per the provided price list from
AMS.
Such
payments will be made by AMS to ABC within thirty (30) days of
the end of the month in which such End User Price was received
by AMS. For purchases other than through ABC Account Number,
AMS shall enter into a Kiosk Purchase Agreement with End Users
to reflect the terms and conditions of the sale of its
Kiosk(s) Packages to such End Users, which such agreement
shall be substantially in the form attached hereto as
Exhibit
A .
3.2
Sale
of Additional Services and Accessories to End Users .
In the event End Users purchase additional Services and/or
Accessories from AMS, AMS will pay to ABC an amount equal to
***% of all gross revenues received by AMS in connection with
the sale of such additional Services and Accessories. AMS will
pay the foregoing amounts to ABC on a monthly basis; such
amounts to be equal to the gross revenues received by AMS in
the immediately preceding month for such additional Services
and Accessories.
3.3
***
_______________
*** Redacted pursuant to a Confidentiality Request with
the United States Securities and Exchange Commission
or
Accessories or Services and the price of the same that was
offered to a third party, as well as the cost of the
audit.
3.4
End
User Prices . During the Term of this Agreement and
notwithstanding the Kiosk Purchase Price, ABC shall be free to
determine the End User Price for Kiosk Packages that ABC
charges to End Users.
3.5
Taxes .
For those Kiosk Packages sold to End Users pursuant to Section
3.1.1 above, ABC shall be responsible for the collection of
all sales, use or personal property taxes from End Users. For
those Kiosk Packages sold to End Users pursuant to Section
3.1.2 above or those Services or Accessories sold
to
