Agreement Terms and Conditions

This Agreement (the “Agreement”) is made as of the Effective Date, by and between Medikana Inc., (the “Consultant”), and the company listed in the Agreement Order Form (the “Company”).

WHEREAS, the Company and the Consultant desire to establish the terms and conditions under which the Consultant will provide services to the Company.

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, the parties agree as follows:

1. Services. The Consultant agrees to perform such consulting, advisory and related services to and for the Company as may be reasonably requested from time to time by the Company, including, but not limited to, the services described on Schedule A  and specified in the Order Form to this Agreement using the Consultant’s employee(s) and approved Subcontractor(s) (as defined below) (the “Employees”).  The Consultant will not engage the services of third party contractors, subcontractors or consultants (each, a “Subcontractor”) in the performance of the services without the prior written consent of the Company.  In the event that the Company permits the Consultant to use the services of one or more Subcontractors, each such Subcontractor will sign a written agreement agreeing to be bound by all of the provisions of this Agreement to the same extent as the Consultant and the Employees. The Company will have no responsibility or obligation to any such Subcontractor.

2. Term. This Agreement will commence on the Effective Date and continue in effect for a period of one year and thereafter for so long as any applicable Distribution Agreement (as defined in Schedule A) remains in effect, unless terminated in accordance with the provisions of Section 4 (the “Term”).

3. Compensation.

        3.1 Consulting Fees. The Company will pay to the Consultant a consulting fee outlined in the Order Form based on a percent of the Net Revenue (as defined below) received by the Company based upon sales of products or services under each applicable Distribution Agreement (as defined in Schedule A) (the “Revenue Share”). Within fifteen (15) days of the end of each calendar month during the Term, the Company will deliver to Consultant a report of all applicable Net Revenue received by Company during the preceding calendar month (each, a “Revenue Report”), including sufficient detail and records to enable Consultant to verify the accuracy of the Revenue Report. The Company will pay to the Consultant the Revenue Share based upon revenue set forth in each Revenue Report within fifteen days of the date of each Revenue Report. For purposes of the foregoing, “Net Revenue” means the total amounts received by the Company based upon sales of products or services under any applicable Distribution Agreement (as defined in Schedule A), after deduction for state, federal and local taxes, refunds, returns, and collection costs.

        3.2 Audit. Upon reasonable notice from the Consultant but no more than one (1) time per year, the Company will make available to the Consultant and its Auditors (as defined below), and allow the Consultant and its Auditors to examine, such financial records and supporting documentation relating to the Net Revenue as may be reasonably requested by the Consultant and its Auditors for the purpose of verifying the Revenue Share payable to the Consultant hereunder.  The Consultant will and will cause its Auditors and other representatives to keep such records and documentation confidential and solely use such records and documentation for the purposes set forth in above. Such examination will be limited to determining if the Revenue Share payments made hereunder are accurate and in accordance with this Agreement. As used herein, “Auditors” means the Consultant’s external auditors (which external auditors will be independent public accountants of nationally recognized standing selected by the Consultant). In the event that an audit reveals any underpayment of the Revenue Share to the Consultant, the Company will promptly pay any such underpaid amounts to Consultant.

        3.3 Expenses. The Company will reimburse the Consultant for all reasonable and necessary documented out of pocket expenses incurred or paid by the Consultant in connection with, or related to, the performance of its services under this Agreement. The Consultant will submit to the Company itemized monthly statements, in a form satisfactory to the Company, of such expenses incurred in the previous month. The Company will pay to the Consultant amounts shown on each such statement within thirty (30) days after receipt thereof.

        3.4 Benefits. The Consultant and its Employees will not be entitled to any benefits, coverages or privileges, including, without limitation, health insurance, social security, unemployment, medical or pension payments, made available to employees of the Company.

4. Termination. This Agreement may be terminated as follows: (a) by either the Company or the Consultant upon not less than sixty (60) days prior written notice to the other party; (b) by the non-breaching party, upon thirty (30) days prior written notice to the breaching party if one party has materially breached this Agreement; or (c) at any time upon the mutual written consent of the parties hereto.  In the event of termination for any reason other than Consultant’s uncured material breach, the Consultant will be entitled to payment of the Revenue Share for sales under each applicable Distribution Agreement (as defined in Schedule A) for the remaining term under each such Distribution Agreement.

5. Cooperation. The Company will provide such access to its information and property as may be reasonably required in order to permit the Consultant to perform its obligations hereunder. The Consultant will cooperate with the Company’s personnel, will not interfere with the conduct of the Company’s business and will observe all rules, regulations and security requirements of the Company concerning the safety of persons and property.

6. Proprietary Information.

        6.1 Proprietary Information. The Consultant acknowledges that its relationship with the Company is one of high trust and confidence and that in the course of its service to the Company it will have access to and contact with Proprietary Information. The Consultant will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance of the services) without written approval by an officer of the Company, either during or after the Term, unless and until such Proprietary Information has become public knowledge without fault by the Consultant.

        6.2 For purposes of this Agreement, Proprietary Information will mean, by way of illustration and not limitation, all information, whether or not in writing, whether or not patentable and whether or not copyrightable, of a private, secret or confidential nature, owned, possessed or used by the Company, concerning the Company’s business, business relationships or financial affairs, including, without limitation, any Invention, formula, vendor information, customer information, apparatus, equipment, trade secret, process, research, report, technical or research data, clinical data, know-how, computer program, software, software documentation, hardware design, technology, product, processes, methods, techniques, formulas, compounds, projects, developments, marketing or business plan, forecast, unpublished financial statement, budget, license, price, cost, customer, supplier or personnel information or employee list that is communicated to, learned of, developed or otherwise acquired by the Consultant in the course of its service as a consultant to the Company.

        6.3 The Consultant’s obligations under this Section 6 will not apply to any information that (i) is or becomes known to the general public under circumstances involving no breach by the Consultant or others of the terms of this Section 6, (ii) is generally disclosed to third parties by the Company without restriction on such third parties, or (iii) is approved for release by written authorization of an officer of the Company.

        6.4 The Consultant agrees that all files, documents, letters, memoranda, reports, records, data sketches, drawings, models, laboratory notebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Consultant or others, which will come into its custody or possession, will be and are the exclusive property of the Company to be used by the Consultant only in the performance of its duties for the Company and will not be copied or removed from the Company’s premises except in the pursuit of the business of the Company.  All such materials or copies thereof and all tangible property of the Company in the custody or possession of the Consultant will be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) the termination of this Agreement. After such delivery, the Consultant will not retain any such materials or copies thereof or any such tangible property.

        6.5 The Consultant agrees that its obligation not to disclose or to use information and materials of the types set forth above, and its obligation to return materials and tangible property set forth in Section 6.5 above extends to such types of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or entrusted the same to the Company or to the Consultant.

        6.6 The Consultant acknowledges that the Company from time to time may have agreements with other persons or with the United States Government, or agencies thereof, that impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements or regarding the confidential nature of such work. The Consultant agrees to be bound by all such obligations and restrictions that are known to Consultant and to take all action necessary to discharge the obligations of the Company under such agreements.

7. Other Agreements. The Consultant hereby represents that, except as the Consultant has disclosed in writing to the Company, the Consultant is not bound by the terms of any agreement with any third party to refrain from using or disclosing any trade secret or confidential or proprietary information in the course of the consultancy with the Company, to refrain from competing, directly or indirectly, with the business of such third party or to refrain from soliciting employees, customers or suppliers of such third party.  The Consultant further represents that its performance of all the terms of this Agreement and the performance of the services as a consultant of the Company do not and will not breach any agreement with any third party to which the Consultant is a party (including, without limitation, any nondisclosure or non-competition agreement), and that the Consultant will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any current or previous employer or others.

8. Independent Contractor Status.

        8.1 The Consultant and its Employees will perform all services under this Agreement as “independent contractors” and not as employees or agents of the Company. The Consultant and its Employees are not authorized to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the Company or to bind the Company in any manner.

        8.2 The Consultant and its Employees will have the right to control and determine the time, place, methods, manner and means of performing the services. In performing the services, the amount of time devoted by the Consultant and its Employees on any given day will be entirely within the Consultant’s and its Employees’ control, and the Company will rely on the Consultant and its Employees to put in the amount of time necessary to fulfill the requirements of this Agreement. The Consultant and its Employees will provide all equipment and supplies required to perform the services. The Consultant and its Employees are not required to attend regular meetings at the Company. However, upon reasonable notice, the Consultant and its Employees will meet with representatives of the Company at a location to be designated by the parties to this Agreement.

        8.3 In the performance of the services, the Consultant has the authority to control and direct the performance of the details of the services, the Company being interested only in the results obtained. However, the services contemplated by the Agreement must meet the Company’s standards and approval and will be subject to the Company’s general right of inspection and supervision to secure their satisfactory completion.

       8.4 The Consultant will not use the Company’s trade names, trademarks, service names or service marks without the prior approval of the Company.

       8.5 The Consultant will be solely responsible for all state and federal income taxes, unemployment insurance and social security taxes in connection with this Agreement and for maintaining adequate workers’ compensation insurance coverage.

9. Non-Exclusivity. The Consultant retains the right to contract with other companies or entities for its consulting services without restriction. Except as set forth in Schedule A with respect to Distribution Agreements, the Company retains a right to contract with other companies and/or individuals for consulting services without restriction.

10. Remedies. The Consultant acknowledges that any breach of the provisions of Section 6 of this Agreement may result in serious and irreparable injury to the Company for which the Company cannot be adequately compensated by monetary damages alone. The Consultant agrees, therefore, that, in addition to any other remedy the Company may have, the Company will be entitled to enforce the specific performance of the obligations set forth in Section 6 of this Agreement by the Consultant and to seek both temporary and permanent injunctive relief (to the extent permitted by law) without the necessity of proving actual damages or posting a bond.

11. Indemnification. The Consultant will be solely liable for, and will indemnify, defend and hold harmless the Company and its successors and assigns from any claims, suits, judgments or causes of action initiated by any third party against the Company where such actions result from or arise out of the Consultant’s failure to pay amounts due to its Employees or the taxes, penalties, and payments referenced in Section 8.5 of this Agreement.

12. Representations, Warranties and Covenants.

       12.1 The Consultant hereby represents, warrants and covenants that the Employees are and will be subject to binding, written agreements that require Employees to protect Proprietary Information at least to the same extent as provided in Section 6 of this Agreement.

        12.2 The Consultant hereby covenants that it will be liable for the acts and omissions of the Employees, including without limitation any breach of this Agreement or violation of law.

        12.3 The Consultant hereby represents, warrants and covenants that it and the Employees have the skills and experience necessary to perform the services, that it and the Employees will perform said services in a professional, competent and timely manner, that it has the power to enter into this Agreement and that its and the Employees’ performance hereunder will not infringe upon or violate the rights of any third party or violate any federal, state or municipal laws.

13. Notices. All notices required or permitted under this Agreement will be in writing and will be deemed effective upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party at the address shown above, or at such other address or addresses as either party will designate to the other in accordance with this Section 13.

14. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter of this Agreement.

15. Amendment. This Agreement may be amended or modified only by a written instrument executed by both the Company and the Consultant.

16. Non-Assignability of Contract. The Consultant will not have the right to assign any of its rights or delegate any of its duties without the express written consent of the Company; provided that Consultant may assign this Agreement in whole to its successor in the event of a merger, acquisition, or sale of Consultant or of all or substantially all of Consultant’s assets or voting securities.  Any assignment or delegation in violation of this Section, whether express or implied or by operation of law, will be void and will constitute a breach and a default by the Consultant.

17. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction.

18. Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of, both parties and their respective successors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to its assets or business, provided, however, that the obligations of the Consultant are personal and will not be assigned by Consultant.

19. Interpretation. If any restriction set forth in Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it will be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.

20. Survival. The following Sections will survive the expiration or termination of this Agreement: 3.1, 3.2, 4, 6, 8, and 10-21.

21. Miscellaneous.

        21.1 No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.  A waiver or consent given by the Company on any one occasion will be effective only in that instance and will not be construed as a bar or waiver of any right on any other occasion.

        21.2 The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.

       21.3 In the event that any provision of this Agreement will be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby.

SCHEDULE A - Description of Offered Services

1. Distributor Matchmaking: The Consultant will search for potential distributors for the Company’s product and related services within each of the countries listed in the Order Form, utilizing industry networks, databases, and market research. The Consultant will evaluate and conduct due diligence regarding potential distributors based on the Company’s pre-established criteria and will provide recommendations to the Company regarding the most suitable distributors to represent and distribute the Company’s products or services in each territory.

2. Distribution Agreement: For each potential distributor identified by the Consultant and approved by the Company, the Consultant will provide active support and assistance in the negotiation process with the selected distributors in order to facilitate agreement upon and execution of a Distribution Agreement between the Company and the distributor (each, a “Distribution Agreement”). Although the Consultant will assist in facilitating the negotiation of each Distribution Agreement, the Consultant will have no authority to make binding agreements on behalf of the Company, and all decisions regarding the terms and conditions of and whether to enter into a Distribution Agreement will be in the sole discretion of the Company. The Consultant will be entitled to the Revenue Share under any Distribution Agreement entered into between the Company and any distributor that is identified and recommended to the Company by the Consultant.

3. Regulatory Registration: The Consultant will assist in the accumulation, review, and compliance with regulatory requirements and the preparation of submissions related to the Company's products and services. Although the Consultant will assist in facilitating the preparation of regulatory registrations, the Consultant will have no authority or liability to make binding agreements on behalf of the Company.

4. Sales and Marketing Support: Throughout the term of each applicable Distribution Agreement, the Consultant will continue to facilitate communications and reporting between the Company and the appointed distributors, including with respect to development and implementation of their sales plans and reporting and order processing and delivery.

5. Reporting: The Consultant will attend regular meetings with the appointed distributors, including at least quarterly sales meetings, and will report the Company regarding status, forecasts, and sales performance. The Company will include in each Distribution Agreement provisions requiring the appointed distributors to cooperate with and report to Consultant with respect to their marketing and sales plans, forecasts, and sales performance.