Exhibit 10.1
DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT ("Agreement"), effective as of July 29,
2008
("Effective Date"), is entered into by and between Competitive
Technologies,
Inc. ("CTT"), a Delaware corporation having a place of business
at:
Competitive Technologies, Inc.
777 Commerce Drive, Suite 100
Fairfield, CT 06825
and Excel Life Sciences, Inc (hereinafter referred to as "ELS" or
"Distributor",
which shall include its subsidiaries, successors and permitted
assigns), a
Delaware corporation with its principal place of business at:
Excel Life Sciences, Inc.
875 North Michigan Avenue
31st Floor
Chicago, IL 60611
CTT and Distributor may each be referred to as a "Party" and
collectively as the
"Parties".
Witnesseth
WHEREAS, CTT wishes to appoint Distributor as the exclusive sales
agent for Pain
Management Therapy Device and Distributor desires to provide such
services to
CTT, in each case, on the terms and conditions set forth
herein.
NOW THEREFORE, in consideration of the mutual promises and
covenants set forth
herein, the Parties agree as follows:
1.0
RIGHT TO DISTRIBUTE
1.1
CTT hereby
grants Distributor the right to purchase from CTT, and
the exclusive right to distribute and sell solely within the
Territory
(as defined hereinafter), the products identified on Schedule 1
hereto
(the "Product(s)").
"Territory"
shall mean the country of India.
1.2
Distributor
shall purchase the Product(s) for resale from CTT at
the price of
[Confidential] USD as set forth on Schedule 1 hereto, as
such Schedule may be amended after two (2) years of the effective
date
of this Agreement in accordance with the terms hereof.
Subsequent
annual price
increases will be capped at [Confidential] per
annum.
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1.3
All orders
for Product(s) by Distributor shall be Ex Works
Manufacturer. GEOMC
Co. Ltd. of Korea (formerly Daeyang E&C)
("Manufacturer") in
Seoul, South Korea is the Manufacturer. The
product supplied
by GEOMC Co., Ltd of
Korea is a CE approved medical
device.
1.4
All Product(s)
sold by CTT to Distributor are sold on an "AS IS,
WHERE IS" basis, except that CTT warrants that upon payment in full
by
Distributor,
Distributor shall
obtain merchantable title to the
Product(s), and
except for any warranties that Manufacturer may
provide.
Manufacturer's and CTT's replacement warranty for normal use
with no physical damage to the unit will be for a period of 12
months.
EXCEPT FOR
THE FOREGOING, CTT
MAKES NO REPRESENTATIONS OR WARRANTIES
WITH RESPECT TO ANY PRODUCTS, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING
WITHOUT LIMITATION
WARRANTIES OF
MERCHANTABILITY, NON-INFRINGMENT OR
FITNESS FOR
A PARTICULAR PURPOSE.
All purchases of the Product(s) by
Distributor from
CTT shall be paid in
US Dollars by wire transfer of
immediately available
funds due to CTT at Bank of America,
with the
purchase price paid in
full within 30 days from the date of the order
by the Distributor.
1.5
All sales to Distributor are final. Any damaged Product(s) with
the Manufacturer's
defects must be returned to the Manufacturer, with
any such return being subject to the terms
of the applicable product
warranty.
1.6
Distributor
agrees to be responsible for the product registration
and other filings in India.
1.7
Distributor
agrees to (i) actively and continually market and
promote the
Product(s)
to appropriate
potential customers; (ii) use
best efforts to
promote the sale of the maximum amount of Product(s);
and (iii) accurately
advise potential customers of the selection, use
and functionality
of the Product(s). Distributor will keep CTT
informed as to conditions that might affect the sale of the
Product(s)
in the marketplace.
1.8
Distributor
will refrain from taking actions that may tarnish or
cause people to hold in poor regard CTT or the Product(s).
Distributor
shall establish
and maintain a marketing program and a
sales force,
customer training
and technical service representatives, who are
properly trained in all aspects of the
distributed Product. CTT shall
have the right to review and discuss with
Distributor at reasonable
times and with reasonable frequency all
aspects of the marketing and
service program.
Distributor
shall be solely responsible for
establishing the
terms of sale (subject
to any limitations set forth
herein) including,
without limitation, the sale price of the
Product(s),
consummating the
sale of any
Product(s), collecting the
sale price,
and for providing any post-sale service that may be
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<PAGE>
necessary with
the exception of manufacturer warranty claims,
which shall
be handled by the Manufacturer.
1.9
To assist Distributor in marketing the Product(s), CTT may
provide Distributor
with such marketing materials as CTT may deem
appropriate. CTT
shall have the right to revise such marketing
materials in
its sole discretion at any time and to provide such
revised marketing
materials to Distributor for all future use.
Distributor shall have no obligation to use such materials and any
use
of such materials is
at Distributor's own risk. Distributor will have
right to adapt the materials for the local market
in the Territory.
Any modifications
made by Distributor to the marketing
and training
materials and
any customer, market or other data collected by
Distributor pursuant
to its distributorship and marketing in the
Territory will
be Distributor's intellectual
property. CTT warrants
that any scientific,
medical and clinical information provided by CTT
to ELS regarding the pain management device is accurate. CTT
will
provide ELS
with at least two representatives (one
business and one
medical/scientific
person) at annual
product launches and promotions
at least one time per Contract Year in
India to support distribution
during the period of exclusivity. CTT or the manufacturer will
provide
ELS training
on servicing the units within the
first six (6) months
following the
effective date of this agreement.
1.10
Distributor shall
provide a written sales summary of actual and
forecasted sales
monthly to CTT (each a "Monthly Report"). Each
Monthly Report
shall be provided to CTT on or before the
fifteenth
(15th) calendar
day of the next month.
1.11
The authority granted
to Distributor is to distribute those
Product(s) it
has purchased from CTT solely within the
Territory.
Moreover, Distributor
shall not sell Product(s) to purchasers outside
the Territory
or to purchasers inside or outside
the Territory that
Distributor believes
or has reason to
believe are primarily intended
for use or distribution outside the Territory without written
permission from
CTT. Distributor shall not have, nor shall it
hold
itself
out as having, either express or implied
authority to accept
orders for the Product(s) on behalf of CTT or to make contracts in
the
name of CTT or any other party. Distributor and CTT
will approach
sales outside
of Territory on a case by case basis and
Distributor
will have ability to sell outside of Territory, if written approval
is
granted by
CTT.
1.12
Distributor
acknowledges and
agrees that Distributor is an
independent agent
under the laws and rules of the United States
Internal Revenue
Service (as well as
any foreign equivalent) and the
laws and procedural
holdings of the State of Connecticut. Distributor
is not an employee of CTT or any subsidiary of CTT, and
shall not
represent himself
to be, nor permit himself to be represented
as,
anything other than a
Distributor of the Product(s). Distributor does
not and shall not have any power to, nor shall
it represent that it
has any power to, bind CTT or create or assume any obligation
on
behalf of CTT.
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<PAGE>
1.13
Distributor shall
not make any representations or warranties
with
respect to
the Product(s) beyond
the product warranties given by the
Manufacturer of the Product(s). Distributor will comply, at all
times,
with all foreign, federal, state and local laws and regulations
applicable to
it, including without limitation, all
applicable laws
relating to
the marketing, sale and distribution
of medical devices
within the
Territory.
At no time shall Distributor engage in
any
high-pressure or
unethical sales techniques.
1.14
The distributors are
authorized
to represent or describe
themselves as "Authorized Distributors or Dealers" of the Products
for
CTT.
2.0
TERM OF AGREEMENT
2.1
Subject to the other provisions of this Agreement, the term of
this Agreement
shall be for an
initial period of four years and four
months (52
months) from the Effective Date ("Initial Term"),
with
exclusive status
in India for Distributor for first sixteen (16)
months. The
first sixteen (16)
months shall be Contract Year 1, with
the first 4 months of the same being the "ramp up
period". Each 12
months period
thereafter
shall be termed as "Contract Year 2",
"Contract Year
3" and so on. Contract Years 2, 3 and 4 will
be on
Exclusive basis
if Distributor has purchased from CTT and not
returned, Product(s)
equal to or in excess of the applicable
Yearly
Product Minimums minus
the tolerance factor, as set forth in Schedule
2 hereto. The term of this Agreement and Exclusivity shall be
automatically extended
for additional one year periods (each a
"Renewal Term,"
) so long as Distributor has
purchased from CTT and
not returned,
Product(s)
equal to or in excess of the applicable
Yearly Product
Minimums minus the tolerance factor, as set
forth in
Schedule 2
hereto, for the last Contract Year of the
Term preceding
the proposed Renewal
Term. Notwithstanding the foregoing, Distributor
may prevent any auto-renewal of the Term by providing CTT with
written
notice of its intent
to terminate this Agreement at least ninety (90)
days prior
to the end of the then-current Term.
2.2
Either Distributor or CTT may terminate this Agreement at any
time if the other Party shall breach its obligations hereunder;
provided, however,
that the non-breaching Party shall give the
breaching Party written notice of such breach, and the breaching
Party
shall have
thirty (30) calendar
days after receipt of such notice to
cure such breach. If such breach is cured to the reasonable
satisfaction of the
non-breaching party during such period, then this
Agreement shall
continue in full force
and effect. If such breach is
not cured to the reasonable satisfaction of the
non-breaching party
during such period, then this Agreement shall terminate effective
upon
the close of business on the last day of such period.
2.3
In the event CTT ceases to have the right to sell any of the
Product(s), either
in whole or in part, Distributor's
right to sell
such Product(s)
shall immediately
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cease, and
CTT shall have no liability whatsoever to
Distributor
arising from such
cessation of sales. To the extent such cessation is
to less than all of the Product(s), this Agreement shall continue
with
respect to
the remaining
Product(s) in accordance with its terms. To
the extent
that CTT ceases to have the right to sell any of the
Products(s), either
in whole or in part, and CTT's action
directly
causes Distributor
to be unable to sell its Product(s) inventory
within a one hundred fifty (150) days period, then CTT agrees
to
purchase the
unsold inventory a
