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Exhibit
10.126
SALES AND
MARKETING AGREEMENT
This Sales and Marketing
Agreement is made and entered into in as of this 19
th
day of May, 2008 by and between Performance
Health Technologies, Inc., a Delaware corporation (the "
Company ") and
Interactive Metronome, Inc., a Virginia corporation
(the "
Contractor
").
RECITALS
The Company is engaged in
the business of manufacturing, distributing and marketing
products known as “Home Products” using its
proprietary Core:Tx® Neuro technology for measuring a
person’s range of motion (the " Products
"). The Contractor markets the Interactive
Metronome (“IM”) to the health care industry and
is desirous of also marketing the Products for the Company
upon the terms and conditions set forth below.
NOW, THEREFORE, in
consideration of the foregoing, and the mutual covenants and
promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged by each party hereto to the other, it is
agreed as follows:
AGREEMENT
1.
Appointment
as Distributor . The Contractor agrees to and
shall solicit sales of the Products to those accounts identified by
the Contractor that are or that may be interested in acquiring the
Products.
2.
Exclusivity
. The Contractor shall be the exclusive distributor of
Products that include Core:Tx(R encircled) Neuro in the United
States and Canada (the “Territory”) for the following
markets:
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a)
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Neurological Rehabilitation Market . Facilities that provide
neurological and motor therapy to adults who have suffered stroke,
brain injury and other neuro-muscular disorders provided that sales
efforts are directed to the Contractor’s contacts in the
areas of the rehabilitation facilities that treat the individuals
referenced above regardless of whether they are IM
customers.
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b)
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Pediatric and Developmental Market . Clinics and
hospitals that typically work with children diagnosed with
cognitive and motor discrepancies, such as Autism Spectrum
Disorders, sensory integration disorders, and a range of speech and
language disabilities, provided that sales efforts are directed to
the Contractor’s contacts in the areas of the clinics and
hospitals that treat the individuals referenced above;
and
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c)
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Specialists. Physical therapists, occupational
therapists and speech therapists who enroll and participate in
IM’s Certification or CEU programs.
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The Contractor is hereby
appointed as a non-exclusive distributor for the Products
with respect to all other markets within the Territory; the
Contractor acknowledges that the Company may appoint an
exclusive distributor for any or all such markets during the
Term hereof, if so the Contractor shall respect that
exclusivity.
The Contractor acknowledges
that sales of “Home Products” not using Core:Tx(R
encircled) Neuro are non-exclusive and any sales, including
Core:Tx(R encircled) Neuro, in other markets (including, but
not limited to orthopaedics) is on a non-exclusive
basis.
The exclusivity granted to
Contractor by the Company becomes null and void should
Contractor fail to sell twelve (12) Core:Tx(R encircled)
Neuro units during the first eight (8) months of this
Agreement, and an additional one hundred twenty (120)
Core:Tx(R encircled) Neuro units during the remaining four
(4) months of the Agreement (two hundred forty (240) units
total during term).
3.
Product
Sales .
A. The parties
shall agree upon suggested retail selling prices for the
Products, which will be periodically revisited and may be
adjusted from time to time based on market conditions and
feedback.
B. The
Contractor shall order Products from the Company to meet its
estimated needs and the Company shall ship such Products to
the Contractor. Contractor will receive a fifty
percent (50%) sales commission from Company on the first one
hundred twenty (120) units sold of the company’s
Core:Tx Neuro, and a sixty percent (60%) sales commission on
all sales thereafter during the term of this
Agreement. Contractor will collect an annual
license fee of $300.00 from each
customer. Contractor is to receive thirty percent
(30%) of this license fee and the company receives the
remaining seventy percent (70%). The commission
for the Home Products shall be fifty percent (50%) of the
agreed upon retail selling price for the Home
Products. The Products shall be shipped FOB the
Company’s place of shipment, and title to the Products
and risk of loss shall transfer to the Contractor upon
placement of the Products with the carrier. The
purchase price shall be payable one-half (1/2) upon
submission of a Purchase Order, and one-half (1/2)
upon delivery of the Products to Contractor and completion of
any acceptance testing agreed to by the parties.
4.
The
Company's Obligations .
The Company shall supply the Contractor with
appropriate sample Products, catalogs and advertising materials
which shall be reasonably necessary to assist the Contractor in
making and promoting sales of Products. The Company will
fund the Contractor’s development and implementing of
certification courses designed specifically for Core:Tx(R
encircled) Neuro products. The Company will work with
the Contractor on a joint marketing plan to maximize the
effectiveness of marketing efforts by both.
5.
The
Contractor’s Obligations. The Contractor
shall use all commercially reasonable efforts to promote the
Products, and specifically agrees that it shall :
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Develop
a website directed at Occupational, Physical and Speech Therapists.
This site would be linked to and from the Contractor’s
website.
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Have
its Clinical Advisory Board develop a clinical education tool
specifically designed for Core:Tx(R encircled) Neuro and creating
certification courses.
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Incorporate
the clinical education tool into the Contractor’s national
certification course schedule.
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Display
and demonstrate the Products at regional or national trade shows
where the IM is also displayed.
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Promote
the Products throughout its 4,000+ professional
network.
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Promote
the Products as a complementary supportive product of the
IM.
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Demonstrate
and sell the Products in person or through the Contractor’s
dedicated telephone marketing staff, and develop an advertising and
mailing program. All materials developed by the
Contractor specifically for the Company’s products become the
sole property of the Company.
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6.
Warranties
. The Contractor shall not make any warranties with respect to the
Products of the Company. Any warranties to be made by
the Company shall be reflected in its acceptance, invoice or other
contract forms.
7.
Term
. This Agreement shall be for a term of one
year. This Agreement may be terminated by the Company
immediately upon the Contractor's material breach of any provision
of this Agreement including, but not limited to the Contractor's
inability to perform its obligations herein for financial reasons
or otherwise.
8.
Relationship
of Parties . The Contractor is and at all times
shall be an independent contractor of the Company and not a partner
or employee of the Company. The Contractor shall
represent itself to all Customers and all other persons only as an
independent contractor and not as an agent or partner of the
Company. Remuneration to the Contractor shall not be
subject to withholding or other employment taxes as required for
compensation paid to employees. The Contractor shall
timely file all required United States federal, state and local
income, self-employment, unemployment and other tax, labor,
information and all other returns and shall pay when
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