medikana,Inc.
Standard Terms and Conditions of Service
(rev. July 2024)
1. Contract Formation. These Standard Terms and Conditions of Service apply to the cross-border advisory and sales services from medikana, Inc. (“Consultant”) in response to a written Service Request Form (the “Service Request Form”) signed by the manufacturer(the “Supplier”) of the medical devices and solutions (the “Supplier Products”) identified in the Service Request Form in connection with the promotion and marketing of the Supplier Products in the jurisdictions listed in the Service Request Form (the “Territory”). Upon Consultant’s acceptance, the Service Request Form and any documentation attached thereto, as well as the standard terms and conditions, shall constitute the entire agreement (the “Agreement”)relating to the Services and supersedes all prior agreements and understandings between the parties, whether written or oral. Any and all Supplier’s terms and conditions are hereby rejected and shall be of no effect, unless specifically accepted in writing.
2. Advisory Services. Commencing on the Effective Date stated in the Service Request Form and for the period of time specified therein, Consultant shall generally provide ongoing, full breadth strategic and consulting services to Supplier’s management staff by performing the activities listed in Schedule A below (the “Advisory Services”).
3. Standard ofAdvisory Services. Consultant agrees to provide the Advisory Services in a first-rate, high-quality manner, consistent with the image Supplier is seeking to establish for Supplier Products in the Territory. Consultant shall determine the method, details, time, location and means of performing the Advisory Services, subject to Supplier’s specifications, parameters, timeline and objectives.
4. Reports. Consultant shall keep Supplier informed on the progress of the Advisory Services as reasonably requested by Supplier.
5. Sales Agency: In conjunction with the Advisory Services, Supplier hereby appoint Consultant, and Consultant hereby accepts the appointment, as Supplier’s independent sales agent for the promotion and sale of the Supplier Products in the Territory during the term of specified in the Service Request Form (the “Sales Services”), and together with the Advisory Services, the “Services”).Unless otherwise indicated in the Service Request Form, the appointment is on an exclusive basis. Consultant’s responsibilities as sales agent are set forth in Schedule B below.
6. Marketing Support. During the term of the engagement Supplier shall support the marketing efforts of Consultant by furnishing printed commercial and technical information and other publications, which Supplier may make available for general distribution from time to time.
7. Compensation: In consideration of the Services, and as Consultant’s sole compensation for such Services, Supplier shall pay to Consultant a commission (the “Commission”) to be paid on a monthly basis as described in Schedule C below. All payments to be made by Supplier to Consultant hereunder shall be made (i) in U.S. dollars to such account at a financial institution as Consultant may from time to time notify Supplier in writing and (ii) without setoff, defense or counterclaim. Supplier assumes all risk of loss or non‑payment which is due in whole or in part to any dispute or claim in any respect (including, without limitation, any alleged dispute as to price, invoice terms, quantity, quality, product defect or late delivery) arising out of or in connection with a sale of a Product from Supplier to a Customer and for which Consultant is entitled to a Commission.
8. Reimbursement of Expenses: Supplier will reimburse Consultant for any reasonable out-of-pocket traveling and entertainment(“T&E”) expenses (as evidenced by appropriate receipts) incurred by Consultant in fulfilling Consultant’s duties under the Agreement, or such other additional amounts specifically authorized in writing to Consultant prior to incurring such additional expenses. T&E includes, but is not limited to, airfare, hotel, taxi, bus, rental car, meals and telephone charges. Within sixty (60) days after any of the above expenses are incurred, Consultant will provide Supplier accurate and reasonably detailed invoices, including receipts for such expenses, and Supplier will pay Consultant in accordance with such invoices within thirty (30) days after receipt of invoice.
9. Key Executives. During the term of our arrangement the individuals named in the Service Request Form shall serve as the primary representatives of Consultant (the “Key Executives”). The Key Executives shall (a) have overall responsibility for personally managing, coordinating and carrying out the performance of the Services and (b)be authorized to act for and on behalf of Consultant with respect to all matters relating to the engagement.
10. No Conflict. During any period in which Consultant is providing Services, Consultant may choose to also provide advisory, sales orother services for others, provided that any such services or persons are not in competition with Supplier and such services do not give rise to a conflict of interest or otherwise interfere with Consultant’s obligations to Supplier.
11. Term and Termination: Unless otherwise indicated in the ServiceRequest Form, the Agreement shall terminate upon the expiration of three (3) years from the Effective Date. The Agreement may be extended at either party’s option; and any such extension shall be based upon a mutually acceptable responsibility and compensation structure. Any non-breaching party may terminate the Agreement (i) at any time without reason upon no less than ninety (90) days’ prior written notice to the other party and (ii) if the other party has breached any of the provisions hereunder,on ten (10) days' prior written notice to the breaching party unless such breach shall have been cured to the reasonable satisfaction of the non-breaching party within such ten (10) days.
12. Rights and Obligations after Expiration or Termination. In the event of any termination of the Agreement, Consultant will make reasonable efforts to bring closure to any in-process work prior to the effective date of termination of the engagement. Orders (as defined in Schedule B) received by Supplier before the expiration or termination of this Agreement and that otherwise meet conditions set forth in Schedule Cshall entitle Consultant to a Commission. Termination or expiration of this Agreement shall not affect any rights or obligations which have accrued prior there to or in connection therewith.
If Supplier terminated the Agreement for any reason not attributable to Consultant, then (i) Consultant will continue to receive Commission for all Orders received during the remaining duration of the applicable signed distribution agreements following such termination and (ii) if no Commissions have accrued by the date of termination, Consultant shall be entitled to a termination fee equal to$15,000 USD.
13. Trademarks: Consultant shall not use any of Supplier’s trademarks or trade names any time during or after the term of this Agreement without Supplier prior written authorization.
14. Confidentiality: During the term of the Agreement and for a period of three (3)years thereafter, Consultant shall not disclose or use Confidential Information except as permitted in the Agreement (including disclosures during discussions with Prospective Partners, as such term is defined in Schedule A) or in writing by Supplier. Confidential Information shall include all information concerning Supplier and the Services disclosed to Consultant by Supplier, or developed as a result of the Services hereunder, except any portion thereof which: (i) is known to Consultant on a non-confidential basis before receipt thereof under this letter agreement, as evidenced by medicine’s written records; (ii) is disclosed to Consultant after the date of this letter agreement by a third party who has a right to make such disclosure in a non-confidential manner; or (iii) is or becomes part of the public domain through no fault of Consultant. Upon completion of the Services hereunder, or the termination or expiration of this letter agreement, Consultant shall return to Supplier all Confidential Information, data and materials Supplier provided to Consultant.
15. Limitation of Liability: Neither party shall be liable to the other for any indirect, incidental, consequential or punitive damage of any kind from any cause arising out of this letter agreement, including without limitation, loss of profits, or goodwill or business interruption. In no event shall Consultant total liability for any damages in any action arising out of or in connection with this letter agreement exceed the total amount Supplier paid to us under this Agreement with regard to the particular transaction that caused the damages or that is the subject matter of the cause of action.
16. Independent Contractor: Consultant status under this Agreement is that of an independent contractor. Consultant is not Supplier’s employee and the Agreement may not be construed as an employment agreement. Consultant shall not be entitled to participate in any of Supplier or Supplier subsidiaries and affiliates’ benefit plans or programs.
17. Governing Law: The Agreement shall be governed by and construed in accordance with the laws of the State of Florida, excluding its conflicts of law principles.
18. Arbitration. Any dispute, controversy or claim arising out of or relating to this letter agreement shall be settled by binding arbitration heard by one (1) arbitrator in accordance with the Commercial Arbitration Rules (“Rules”) of the American Arbitration Association. The arbitrator shall be appointed in accordance with the Rules. The award of the arbitrator shall be final and non-appealable, and judgment may be entered on the award of the arbitrator in any court having proper jurisdiction. The place of arbitration shall be Miami, Florida. The prevailing Party shall be entitled to recover its reasonable attorney’s fees, costs and expenses incurred in connection with the arbitration, and in enforcing any award.
19. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT.
20. Binding Effect. This Agreement shall be binding upon the parties, their heirs, legal representatives, successors and assigns.
21. Assignment. Any assignment of the Agreement will be void without the other party's prior written consent, which will not be unreasonably withheld; provided, however, that either party may transfer an assign this Agreement without the other party's consent to any person or entity that is an affiliate of such party or that acquires substantially all of the stock or assets of such party’s applicable business if any such assignees agree, in writing, to be bound by the terms of this sales contract.
22. Severability. If any part of this Agreement is found invalid, the remaining part will remain effective.
23. Waiver; Survival; Notices. Any failure to enforce any provision of this Agreement is not a waiver of that provision or of either party’s right to later enforce each and every provision. The terms of this Agreement that by their nature are intended to survive its expiration (such as the governing law and dispute resolution provisions included herein) will continue in full force and effect after its termination. All notices shall be given in writing and be personally delivered or sent by postage prepaid mail or e-mail of a PDF document addressed to the parties at their addresses stated in the Service Request Form or as otherwise designated to the other by notice as herein required.
24. Amendment. The Agreement may be amended or modified only by a written instrument executed by Supplier and Consultant.
Schedule A
Description advisory Services
1. Overview.
As part of Supplier go to market strategy, Consultant shall directly work with Supplier to develop, review and evaluate a comprehensive distribution channel and marketing plan for the Supplier Products in the Territory (the “Plan”), which Plan shall include guidelines to identify companies that Consultant believes qualify as potential partners to act as distributors, agents or other market intermediaries (“Prospective Partners”) to promote the supply of Supplier Products in the Territory, with particular attention to those regions that offer the biggest opportunities for the overall growth of Supplier business in the Territory. Consultant will also assist Supplier in the implementation of the Plan, including coordinating contacts with the Prospective Partners, local visits, preparation of appropriate materials, negotiation of initial business plans, and proceeding with activities necessary to close distribution, supply or similar commercial agreements with Prospective Partners, including “due-diligence” activities to assess if Prospective Partner have adequate financial resources, personnel resources, physical facilities, local market presence, competence to deal with after-sales support, regulatory compliance, as well as good standing in the business community and sound business practices to become appointed as Supplier distributor or agent.
2. Prospective Partner Selection Guidelines
Consultant shall identify the qualities required of a Prospective Partner in order to ensure that planned sales results are achieved. A candidate for appointment as a Prospective Partner should be a company having the necessary skills and marketing organization to efficiently promote the Supplier Products, and capable of providing the necessary sales related and after-sales services in the particular area of Territory concerned.
3. Evaluations and Performance Reviews
Consultant’s responsibilities include meeting in person or by electronic means with Prospective Partners and otherwise maintain effective relationships with them.
4. Agreements
The standard form of business partnerships, distribution, sales agency or similar agreements to be presented by Consultant to Prospective Partners shall have been approved by Supplier. Any modification to an executed agreement may only be discussed with the appointed Prospective Partner after receiving approval of Supplier contact person. Termination and/or non renewal of recruited Prospective Partners shall be at Supplier sole discretion.
Schedule B
Description of Sales Services
1. Customers.
Customers refers, without limitation, to:
- medical institutions,
- hospitals,
- private clinics,
- medical consulting facilities,
- medical educational facilities,
- private medical practitioners,
- national and local government health authorities,
- appointed distributors, sales agents, and other market intermediaries
all the above individuals and entities domiciled in the Territory,
as well as international packagers any where acquiring Supplier Products for delivery within the Territory.
2. Responsibilities of Consultant.
Consultant shall be responsible for:
(a) at Supplier request, obtaining from proper sources (i) orders and sales forecast, and/or(ii) market information and prospects;
(b) at Supplier request, transmitting proposals and/or technical data to Customers and, to the extent authorized by Supplier participate and assist Supplier in sales contract negotiations with Customers;
(c) complying with Supplier instructions regarding the price of Supplier Products to Customers;
(d) performing such liaison services with customers in the Territory as Supplier may from time to time require in order to ensure Customer satisfaction with respect to any order for Supplier Products;
(e) assisting Supplier, when so requested and in accordance with instructions given therefor by Supplier, in collecting payment from Customers as required by the Supplier/Customer contract, and/or in negotiating work-outs or restructuring with Customers of amounts owed to Supplier by Customers; and
(f) assisting Supplier in obtaining and gathering information, financial and other, including but not limited to, checking credit reference of Customers, as may be needed by Supplier when considering a financing application submitted for an Order.
(g) Managing regulatory submissions for market entry of the Supplier Products in the Territory, including documentation preparation, and compliance oversight related to the Supplier Products, provided, however. that Consultant shall not be responsible for translation costs.
3. Orders.
(a) Customers’ purchase orders for Supplier Products (“Orders”) may be solicited by Consultant, appointed distributors or sales agents or directly by end users identifying the Supplier Products ordered, prices and requested delivery date(s). All Orders must be accepted by Supplier before they become valid. Supplier reserves the right to discontinue production and the sale of any Supplier Product without incurring any liability to Consultant.
(b) Consultant does not have and shall not have any right, power, or authority to create any contract or obligation, either express or implied, on behalf of, in the name of, or binding upon Supplier.
(c) Supplier may accept or refuse Orders transmitted to Supplier at Supplier sole discretion, and no commission or indemnity whatsoever may be claimed by Consultant for any Order not accepted by Supplier.
4. Prices
Supplier at its sole discretion shall establish the prices, charges, and terms of sales of the Supplier Products to Customers (“Sales Policies”). The Sales Policies shall be those currently in effect and established from time to time by Supplier in Supplier price lists and other authorized releases.
Unless authorized in writing by Supplier, Consultant shall not propose prices or conditions of sale of the Supplier Products other than those provided by Supplier, grant discounts or extensions of payment other than set forth in Supplier terms of supply and payment or receive payments or advances on Supplier invoices unless permitted under Paragraph 3(d) above.
Schedule C
Commission
1. Commission. In consideration of the Services Supplier will a Commission on the amounts invoiced by Supplier for the sale, lease or other disposition of Products pursuant to Orders accepted by Supplier, provided that such orders have been (i) forwarded by Consultant and/or (ii) specifically identified by Consultant and received directly by Supplier from Customers when such Orders result from the efforts made by Consultant. Supplier shall make available to Consultant a copy of any such Order upon approval.
2. Computation. Commissions shall be computed on the net amount of the invoice rendered for each Order or part of an Order, exclusive of, freight and transportation costs (including insurance and packing costs), normal and recurring bona fide trade discounts and any applicable sales and similar taxes (hereinafter the “Net Sales Price”).
3. Rates. You shall pay Commissions to Consultant the rates established in the Service Request Form of actual net cash Net Sales Price collected by Supplier from Customers in payment of invoices for the sale of Supplier Products by Supplier in the Territory.
4. Accounting. You shall, without request by Consultant, within five (5) days following the beginning of each calendar month during the term of this letter agreement, render to Consultant written accounts (the “Monthly Reports”) listing the qualifying Orders and the accrued Commission for the relevant month (the “Accrued Monthly Commission”).
5. Payment. On or before the 15th day after the month in which payment from Customer is received by Supplier, Consultant shall be paid the Commission proportionately to the receipt of payments tendered by the Customer (for example, if Customer agrees to pay 50% down upon execution of a purchase agreement, and 50% upon acceptance of the Supplier Products by such Customer, Consultant shall be paid 50% of its Commission upon each such payment by such Customer).
6. Method of Payment. All payments by Supplier to Consultant the reunder shall be made in U.S. Dollars to the bank account in Agent’s name in the United States to be timely designated in writing by Consultant to Supplier.
7. Records. Supplier shall keep accurate records in sufficient detail to enable the Commission accrued and payable under this letter agreement to be determined. Such records shall be retained for at least three (3) years after the close of the period to which they pertain.
8. Audit. Upon our request, with reasonable notice, but not more frequently than once a year, Supplier shall permit Consultant or its designee to have access during regular business hours to such records as may be necessary to verify the accuracy of the Commission made or payable hereunder.
9. Tax Liability. Consultant shall bear exclusive responsibility for the discharge of any tax liability arising from any Commissions paid by Supplier under this letter agreement.
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