Exhibit
10.1
AGENCY
AGREEMENT
THIS AGREEMENT (the
“Agreement”) is made and entered into as of the 6th day
of January, 2005, by and between R X FULFILLMENT
SERVICES, INC., having its principal office at 9100 Southwest
Freeway, Suite 130A, Houston, Texas 77074 (hereinafter referred to
as R X FS) and VipMedR X having its principal
office and place of business at 8807 Colesville Rd, Suite 2, Silver
Springs, MD 20910 (hereinafter referred to as "AGENCY").
WHEREAS, R X
FS desires to engage the services of AGENCY as an independent sales
representative on the terms and conditions set forth herein, and
AGENCY desires to represent and sell products and services of R
X FS on such terms and conditions as set forth
below.
NOW THEREFORE, in
consideration of the promises and mutual benefits and obligations
of the parties, which are hereafter set forth, and the sufficiency
of which is hereby expressly acknowledged, it is hereby agreed as
follows:
1.
Appointment of
Agency. R X FS hereby
appoints AGENCY as its representative, and AGENCY hereby agrees to
act for R X FS as its exclusive sales agency for the
products and services, described in Exhibit A (“Products and
Services”), throughout the Territory, or otherwise defined
area (the “Territory”) listed within this
Agreement.
1.1.
Territory
. The term
“Territory” as used in the Agreement is defined to mean
the unique customer set serviced by VMRx and its affiliated
entities as identified in Exhibit B. AGENCY may market in
other territories from time to time, which may be included within
this agreement, with the written permission of R X FS on
a case-by-case basis.
1.2.
1.3.
Exclusivity . During the term of this
Agreement, R X FS will not appoint any other person,
firm, or corporations as a distributor, AGENCY, or sales
representative for the Products and Services within the Territory
except providing for the fact that R X FS has a first
right of refusal to market its products and service directly to end
users.
2.
Responsibilities of
AGENCY .
Within the territory described in Paragraph 1, AGENCY
shall:
2.1.
Best Efforts to
Market .
AGENCY agrees use its best efforts in marketing R
X FS Products and Services as described in Exhibit A
which is incorporated herein as though set out verbatim, in the
Territory. In order to develop the full sales potential of
the Territory, AGENCY agrees that it will perform at its expense
the duties describe in subparagraphs a. through b.
a.
Promotion and
Marketing .
AGENCY shall engage in sales promotion activities in the
Territory, which promotion activities shall include but not be
limited to, prospecting, sales presentations, demonstrations,
industry and association convention attendance and distributing
printed material supplied by R X FS to current and
potential customers. The Products and Services will at
all times be designated by their current names (as designated by R
X FS) and identified as the Products and Services of R
X FS being offered for sale through AGENCY as an
Independent Sales AGENCY of R X FS.
b.
Coordination . AGENCY will coordinate its
sales efforts with R X FS. To this end AGENCY
will:
(1)
Effectively and promptly
follow up leads and referrals supplied by R X FS and
keep R X FS informed of the results;
(2)
Inform R X FS
of all inquires and bid requests relating to the potential sale of
Products and Services;
(3)
Furnish R X
FS with copies of all printed materials used by AGENCY which are
not supplied by R X FS and in which R X FS or
the Products and Services are mentioned, which must be approved in
writing in advance by R X FS; and
(4)
Convey to R X
FS any information, which may be of value to R X FS that
may come to AGENCY’s attention concerning market conditions,
competition, pricing, customers, and prospects.
2.2.
Pricing
Orders .
AGENCY will adhere to R X FS then current
published price lists or special quotations authorized in writing
by R X FS in soliciting orders for the Products and
Services; and, unless otherwise authorized by R X FS,
all prices are subject to change at any time prior to acceptance of
an order or contract by R X FS.
2.3.
General
Conduct .
AGENCY shall adhere to, cooperate, and comply with R
X FS sales policies and programs. AGENCY will at all
times conduct its business in a manner that will reflect favorably
on R X FS and its Products and Services and will not
engage in any deceptive, misleading, illegal or unethical business
practice.
a.
Inspection
. R X
FS shall have the right upon reasonable notice and during normal
business hours to visit AGENCY’s place(s) of business for the
purpose of verifying satisfaction by AGENCY of its duties under
this Agreement.
2.4.
Competitive
Activities .
AGENCY will not act as an AGENCY, employee, or in any other
manner for any Product and Services in the Territory, which
compete, directly or indirectly with the Products and Services
specifically listed in this Agreement. AGENCY will disclose
to R X FS the identities of all Agreements for Products
and Services, which it currently represents that may compete,
directly or indirectly with R X FS products and services
specifically listed in this Agreement. AGENCY will notify R
X FS of contemplated additions to such representations
prior to making new commitments.
a.
Additional Product or
Service Lines . If also handling additional
product or service lines, to give equal importance, emphasis and
time to promoting R X FS products or services.
2.5.
Sales Quotas and
Purchase Objectives . AGENCY shall be expected to
maintain a sales volume deemed reasonable for its Territory, to be
determined from a monthly sales review conducted by R X
FS and AGENCY through the first year of this Agreement.
Within 30 days of the signing of this Agreement, AGENCY and R
X FS will conduct a Planning Session to establish
definitive Purchase Objectives for this Agreement. Thereafter
these Purchase Objectives will be reviewed and revised as necessary
annually.
2.6.
AGENCY
Reports .
AGENCY agrees to make periodic reports to R X FS,
as reasonably requested by R X FS with respect to sales
and potential sales, including available information relating to
conditions in the Territory and the financial status of customers
and potential customers. AGENCY also shall report to R
X FS such information as is necessary to enable R
X FS to supply Products and Services that shall meet
customer’s specifications, safety codes and similarly
regulations and requirements in the Territory. AGENCY
acknowledges that it is R X FS’S objective to
obtain “sole-source negotiated sales” whenever
possible.
(1)
Monthly sales tracing
report coinciding with the review of Purchase Objectives outlined
in Section 2.5 of this Agreement . This report is to include the
following information regarding customers who have received
shipments of R X FS Products, delivery of R X
FS Services, or are potential customers of R X FS:
name, city, state, zip code; primary contact, phone number,
fax number, email address, website, year-to-date sales revenue by
product or service, forecasted future sales revenue by product or
service, and other information that R X FS may require
from time-to-time.
2.7.
AGENCY’s
Operations and Expenses . Except as hereinafter
specified, AGENCY shall be responsible for all expenses incurred by
it in connection with the implementation and performance of its
duties and obligations under this Agreement, including but not
limited to, the expenses incurred in fulfilling its duties and
responsibilities as provided in Paragraph 2; salaries for its
personnel; costs and expenses associated with establishing and
maintaining its sales organization and offices; advertising and
promotion expenses and any and all taxes, duties, tariffs or
charges which may be imposed on the AGENCY in the Territory.
Subject to written approval in advance by R X FS
in advance for each specific trip, R X FS shall
reimburse AGENCY for its actual and reasonable travel, room and
board expenses incurred, while performing services under this
Agreement in the Territory areas which are outside of the
AGENCY’s principal business or residence, provided that
AGENCY shall subject reasonable documentation for such
expenses.
2.8.
Compliance with the
Law .
AGENCY agrees that in rendering services and in carrying out
its other duties under this Agreement, it shall neither undertake
nor cause or permit to be undertaken any activity which is illegal
under the laws of the Territory or of the United States of America.
a.
AGENCY covenants and
warrants to R X FS that any fees or commissions paid to
or to be paid to AGENCY under this Agreement are for AGENCY’s
own account, and that except as appropriate to carry out
AGENCY’s duties set forth herein in a legal manner, AGENCY
has not, has no obligation to, and shall not, directly or
indirectly, give, offer, pay, promise to pay, or authorize the
payment of money or thing of value to any other person in
connection with the transactions for which commissions hereunder
are to be paid. AGENCY agrees not to take any actions that
would cause R X FS to violate any United States, State,
and foreign antitrust laws, Medicare and Medicaid Coverage
Regulations and Requirements, Safe Harbor Regulations,
Anti-Kickback Statutes, Fraud and Abuse Laws. AGENCY further
agrees and warrants that no officer, director, employee, or AGENCY
of AGENCY is an official of the Government.
b.
AGENCY understands and
agrees that R X FS may comply with any legal provision
requiring disclosure, or any request from the United States
Government or the Government of the Territory to disclose, by
affidavit or AGENCY as well as the identities of AGENCY’s
principal and the amount of any payment made or to be made to
AGENCY hereunder.
c.
AGENCY covenants and
warrants that it shall make and keep books, records, and accounts
that, in reasonable detail, accurately and fairly reflect the
transactions performed by it hereunder and the dispositions of the
commissions paid to AGENCY pursuant to this Agreement.
d.
In the event of a
material breach of AGENCY’s representations, warranties, or
obligations under this paragraph, this Agreement may be immediately
terminated by R X FS. For the purposes of this
paragraph, a material breach of representation, warranty or
obligation by AGENCY shall be such failure of compliance or breach
of this paragraph as may be determined by the arbitration panel
provided for in Paragraph 13 hereof, or as may in the reasonable
opinion, rendered after giving AGENCY a full opportunity to present
its position as to the relevant law and facts of independent
counsel (i.e., counsel not previously having represented R
X FS) appointed by R X FS place R
X FS in jeopardy of civil or criminal liability
under the laws of the United States or the Territory.
2.9.
Orders
. AGENCY shall
submit contracts and/or orders for Products or Services in one of
the following manners:
a.
By R X FS Web
Site directly to R X FS;
b.
Via the US Postal Mail
to the address in this Agreement; or
c.
By Fax to the Fax in
this Agreement.
2.10.
Indemnification.
AGENCY will
indemnify and hold R X FS harmless from any liabilities
or damages that R X FS may suffer by reason of
AGENCY’S breach of any representations or warranties made by
AGENCY directly to customers or expressly authorized in writing by
AGENCY.
3.
Product and Service
Pricing. R X FS has the
exclusive right to establish and set all prices and pricing
guidelines for its products and services.
3.1.
Payment
Terms. All products and services are
sold to customers including all normal, shipping, transportation,
insurance and similar charges, which shall be the responsibility of
customer. If shipments are made in installments, each
shipment shall be a separate and independent transaction and shall
be invoiced by R X FS and payable by customer
separately.
S
Exhibit
10.1
3.2.
Proprietary
Rights .
All patents and patent applications, trademarks, service
marks, copyrights, trade names, and other proprietary rights in and
with respect to R X FS Products or Services are and will
remain exclusively the property of R X FS. During
the term of this Agreement, AGENCY may indicate that it is an
authorized AGENCY of R X FS and may use the trademarks,
service marks, logos, symbols, and trade names of R X FS
applicable to R X FS Products or Services in connection
with AGENCY’s distribution and sale of R X FS
Products or Services in the Territory in accordance with the terms
of this Agreement. All use of such trade names, trademarks,
logos, and symbols shall be immediately discontinued upon the
termination of this Agreement. AGENCY shall not remove from,
alter, or add to any trade name, label, logo, decal, trademark,
patent number, or serial number affixed by R X FS to any
of R X FS Products. AGENCY shall not directly or
indirectly obtain or attempt to obtain at any time any right, title
or interest by registration or otherwise in or to the trade names,
trademarks, symbols, or designations owned or used by R
X FS. AGENCY shall notify R X FS of any
use of R X FS trademark or trade name, which comes to
its attention that may infringe upon R X FS rights and
shall cooperate at R X FS expense in any prosecution of
such infringement.
4.
COMPENSATION.
4.1.
Commission
Payments .
In
consideration for the sales and promotion efforts of AGENCY, R
X FS will pay AGENCY a commission on all collected
revenue from the sales of Products and Services delivered to
customers in the Territory if such deliveries are the result of
firm orders or sales contracts signed by the customer and R
X FS during the term of this Agreement and all
commission payments shall survive termination of this Agreement.
Such commission shall be equal to the applicable percentage
as set forth below of the net revenues invoiced on sales of the
Products in the Territory. Net revenues for the purpose of
determining commissions are the gross sales price of the products
and services ordered, sold to, invoiced to, and collected from
customers in the AGENCY’s Territory, less contractual
discounts, expense charges, shipping charges, and applicable taxes.
RETAIL COMMISSION
SCHEDULE:
|
|
Pharmaceutical
Products
|
|
Commission
|
5.0%
|
|
|
Specialized Dispensing
Systems
|
|
Commission
|
5.0%
|
|
|
Durable Medical
Equipment
|
|
Commission
|
3.0%
|
|
|
Consultant Pharmacist
Services
|
|
Commission
|
0.5%
|
a.
Eligibility for
Commissions After Termination. Commission payments will
survive the termination of this Agreement as follows:
(1)
Contracts and
Orders. R X FS will pay
AGENCY commission payments on all collected sales for Products and
Services provided under sales contracts executed in the
AGENCY’s Territory during the term of this Agreement for the
term of the Contract between R X FS and the
Customer.
4.2.
Payment
.
Except as provided
herein or otherwise agreed to in writing on an individual order
basis, commission payments in respect to Products and Services sold
will be due and payable to the AGENCY on or before the 20
th day following the end of the calendar month in which
R X FS receives payment from the sale of such Products
and Services. Any reduction in commissions, such as may
result from a return of products, will be deducted from subsequent
commission payments, and any balance not so repaid within 60 days
after termination of this Agreement will be repaid by AGENCY in
cash upon demand.
4.3.
Advances/Draws
. R X FS may
advance funds from time-to-time, at its discretion, to the AGENCY
for various development and marketing expense. Any advance of
funds paid shall be deducted from the commissions earned or if such
commission are insufficient, shall be repaid upon demand by R
X FS.
4.4.
Statements and
Records.
a.
Each remittance of
commissions will be accompanied by a statement, certified to be
correct by an officer of R X FS, showing the commissions
accrued and adjustments for the preceding calendar quarter and any
other information necessary in order for the proper determination
of the amount of commissions payable under the terms of this
Agreement.
b.
R X FS shall
establish and maintain full, true and accurate books and records
containing information, which may be necessary for the purpose of
showing the commissions payable to the AGENCY. Such records
shall be maintained by R X FS at its principle offices
in the United Sates, and said records shall be open at all
reasonable times, for a period of (5) years following the end of
the calendar quarter to which they pertain, for inspection by an
independent public accountant obtained by the AGENCY in order to
verify the statements of R X FS and the commissions
which shall been remitted to the AGENCY. Any information
obtained as a result of any such inspection shall be maintained in
confidence by such public accountant and by the AGENCY and shall be
disclosed only to such extent as may be require in order for the
AGENCY to enforce its rights to receive commissions as provided in
this Agreement.
5.
Duties and
Responsibilities of R X FS . R X FS
shall:
6.
6.1.
Support
Services . R X FS will
provide the following support services for the benefit of AGENCY:
email account, marketing materials, business cards, and other
support services that may be deemed necessary from time to
time.
6.2.
Pricing
Schedule .
Maintain a current Product Pricing Schedule for all standard
items and services.
6.3.
Sales and Service
Assistance .
Provide sales and technical assistance to AGENCY, including
but not limited to providing sales leads for potential customers
within the territory who contact R X FS
directly.
6.4.
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