MARKETING AGREEMENT
THIS MARKETING AGREEMENT ("Agreement") is entered into
effective as of the (21)
day of February 2006, by and between Trillennium Medical Imaging,
Inc. a wholly
owned subsidiary of Wellstar International, Inc., a Nevada Corporation having
its principal
place of business in Ohio, ("Licensor") and Marty Ellis,
President, Allevia Medical, ("Rep.").
WITNESSETH:
WHEREAS, Licensor
holds the exclusive rights to certain advanced, FDA approved
thermal imaging
cameras, related software and equipment,
(the "Trillennium
System") and has the
ability to provide related training services, all as
further specified herein (the "Trillennium Services"); and
WHEREAS, the
Trillennium System
incorporates certain
patents, patent
pending
applications,
proprietary
inventions,
know-how, and
other Confidential
Information (the "Licensed Technology"); and
WHEREAS, Rep. has
existing or seeks to develop relationships with certain
pain
clinics, imaging
clinics, wound care facilities, hospitals, nursing homes,
nursing home
management
companies,
ambulatory
care facilities and other
healthcare providers in which Rep. believes it will be beneficial
to utilize the
Trillennium System; and
WHEREAS, Licensor
desires to appoint Rep. as its non-exclusive Marketing
Representative
for the purpose of assisting Licensor in expanding its
Trillennium Services client base, it is
NOW, THEREFORE,
AGREED, in consideration of the mutual promises set forth below
and other good and valuable consideration, the receipt and sufficiency of
which
all parties hereto hereby acknowledge, as follows:
1. Recitals.
The above recitals are true and correct and are fully
incorporated into the body of this Agreement as if fully rewritten
herein.
2.
Definitions.
a.
"Commencement
Date" means the date upon which Rep.
places its first
order for Thermal Imaging Systems in accord with the terms and
conditions hereof.
b.
"Confidential
Information" means and
collectively includes all secret
and confidential
Technical Information, as hereinafter defined,
including all specifications, data, drawings, explicated
know-how and
experience,
trade secrets,
software,
databases,
proprietary
information and any
documents owned by
Licensor which pertain to the
Thermal Imaging
Cameras and/or is used in the Trillennium Services,
including but not
limited to the Licensed Technology, to the extent
that such information:
(i) was not known to
the recipient; (ii)
was
not disclosed
in published literature; (iii) was not generally
available in the
industry; and/or (iv)
has not been divulged
to the
recipient by a third party.
c.
"Licensed
Rights" means and includes the right to
obtain and use the
Trillennium System in
Rep.'s present or
future pain and/or
imaging
clinics or such other
entities with
which Rep.
shall successfully
arrange a License Agreement for the use of the Trillennium
System.
d.
"Technical
Information"
means unpublished research and development
information, market
and business
information, patented
inventions,
patent
applications, know-how, trade secrets, manufacturing
information, computer programs and computer design programs,
technical
data and management
or supervisory know-how in the possession of
Licensor as of the
Commencement Date, or
as subsequently
acquired,
developed, produced or
otherwise available to
the Licensor following
the Commencement Date and throughout the term of this
Agreement.
<PAGE>
3.
Enhancements.
a.
Licensor shall
promptly notify Rep. of any and all
enhancements
or
improvements
(hereinafter all
included in the term
"Enhancements")
relating to the Trillennium Services, including but not limited to
the
Trillennium
System and/or
Licensed
Rights which are hereafter
developed by the Licensor, and Rep. shall have the right to market
all
such
Enhancements,
subject to
such reasonable fees for such
Enhancements as
Licensor may, in its sole discretion, deem
appropriate, as
though originally included in the grant of rights
hereunder.
b.
Rep.
agrees that it will notify Licensor of any Enhancements it
develops or discovers.
Rep. hereby grants to Licensor the right
to
unencumbered use and
to secure patent
rights in such Enhancements
developed by Rep. as part of the consideration received by Rep. from
Licensor for the right to market the Trillennium Services as provided
for herein.
4. Repair and
Maintenance. Rep.
agrees to immediately
notify Licensor of any
defects in any equipment or other materials provided by Licensor pursuant
to
the terms of this Agreement. Any repairs and/or replacements
necessitated by the
negligence and/or
intentional
acts of Rep.,
Rep.'s
employees,
agents, contractors or other invitees shall be made at
Rep.'s
sole
expense. 5. Nondisclosure of Confidential Information.
a.
All Confidential Information and/or materials made available by
Licensor to Rep.
hereunder shall remain
so until such time, if ever,
as the material is no longer confidential through no action,
inaction
or fault of Rep. and shall be kept and maintained as confidential
and
shall not be
disclosed by Rep. to any third party unless such
information and/or materials are published or enter the public
domain.
b.
For the
purposes of
compliance
with the privacy
provisions
of the
Health Insurance
Portability and
Accountability Act of 1996 (HIPAA),
Rep. and Licensor's relationship with each other are as "Covered
Entities." As used hereunder, the terms "Covered Entity",
"Protected
Health Information",
"use" and "disclosure"
shall have the
meanings
ascribed to them in 42 CFR Section 164.501.
c.
Rep. and the
Licensor each agree to conduct their respective business
in accordance with all
applicable
laws and regulations, including
HIPAA and the regulations promulgated thereunder.
6. Marketing
Rights and Obligations.
a.
Licensor
appoints Rep. as its non-exclusive Marketing Representative
for the purpose of facilitating Trillennium System installations and
License
arrangements
(each an "Arrangement" and collectively
"Arrangements")
between Licensor
and such third parties (each a
"Prospect" and
collectively
"Prospects") that (a)
are introduced to
Licensor by Rep. and/or its agents and/or representatives during the
Term (defined below) hereof and (b) with whom Licensor does not
have a
pre-existing
relationship (whether
business or personal)
with such
Prospect or its
representatives
(as evidenced by the records of
Licensor) (a
"Pre-existing
Relationship").
If a Pre-existing
Relationship is in
place Licensor will
notify Rep. within
three (3)
business days of the
date on which a Prospect's name is presented if
Licensor has a Pre-existing Relationship with such Prospect,
and will
promptly thereafter
provide Rep. with
evidence from Licensor records
of such Pre-existing Relationship. Rep. accepts such appointment,
and
agrees to use its best efforts to facilitate such Arrangements.
2
<PAGE>
b.
Rep. agrees that
during the Term hereof, any extension thereof or for
so long as Licensor
shall be paying
Commissions to Rep. for services
rendered hereunder, Rep. shall neither market, represent nor
recommend
any product
or service competing, directly or indirectly, with
Licensor's Trillennium System or any component thereof.
c.
With regard to
Rep.'s marketing activities, Rep. agrees that:
i. Licensor
may, at Licensor's sole option, be involved in all
planning and marketing presentations;
ii. Rep.'s right to
participate
in any seminars,
trade show,
etc,
with Licensor shall be
at Licensor's sole
discretion,
on such
terms and conditions as Licensor, shall, in it's sole discretion
determine, on a case by case basis;
iii. All pricing, use fee and other financial determinations shall be
determined solely by Licensor, in Licensor's sole discretion,
and
Rep. shall
not make any representations regarding the same
without Licensor's express written consent;
iv. Rep. understands and agrees that in the event Rep.
introduces
another individual or
group which Licensor agrees to engage as a
marketing
representative, then
and in that event,
Rep.'s sole
compensation arising
therefrom or from any business or fees
of
any kind or nature
generated from or through such marketing
representative shall
be in the form of a credit of the number of
timely paid not
repeat imaging sessions generated from such
accounts to
Rep.'s order for purpose of calculating Rep.'s
entitlement to stock bonus(es) in accord with Schedule A
attached
hereto.
7. No Obligation
to Consummate
Arrangement or
Installations; No Fees
Unless
Arrangement Consummated. Licensor is under no obligation to
consummate any
Arrangement with any Prospect(s) or to place its Trillennium
System in any
location requested
by Rep. or to continue any such installation or
Arrangement unless
Licensor, in its sole
discretion, determines
it is in
its
best interest to do so. Notwithstanding anything in this Agreement to
the
contrary, Licensor is
under no obligation to
pay any Commission
(or
other consideration
whatsoever) to Rep. under this Agreement or otherwise,
unless Licensor has received the payment from which such commission
arises
from a particular Prospect,
with whom Licensor
does not have a P
