Exhibit 10.1
PURCHASE
AGREEMENT
THIS
PURCHASE AGREEMENT (the “Agreement”), dated as of the 23rd day of June, 2021, by and
between USA Equities Corp., with its principal place of business at 901 Northpoint Parkway Suite 302, West Palm
Beach FL 33407 (the “Buyer”) and MedScience Research Group, Inc., a Florida corporation with its principal
place of business at 16469 Bridlewood Cir Delray Beach FL 33445 the “Seller”). The Buyer and the Seller are
sometimes referred to herein individually, as the “Party” and collectively, as the “Parties.”
WHEREAS,
the Seller owns the US Trademark “AllergiEnd”, Registration No. 4,618,114 (the “Mark”), the Web domain “AllergiEnd.com”
(the “Domain”), the US Method Patent Registration No. 9,655,556 (the “Patent”), together with the know-how and
intellectual property related to the inventions embodied in the Patent, together Seller’s “Intellectual Property”;
and
WHEREAS
the Buyer wishes to purchase and the Seller desires to sell, transfer and assign said Intellectual Property for the consideration
set forth in Article 2 below.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual representations, warranties, covenants, and agreements contained
herein, the adequacy and legal sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE
1
TRANSFER
of ASSETS
1.1
Transfer.
(a)
Seller hereby sells, assigns, transfers and delivers all right, title and interest of Seller in the Intellectual Property as set forth
above, as well as the goodwill associated with the Mark (collectively, the “Purchased Assets”) to Buyer, in each case free
and clear of all liens, claims and encumbrances as defined below.
(b)
Concurrently herewith Seller is delivering to Buyer a Bill of Sale for the Purchased Assets. Promptly after the date hereof Seller shall
execute and deliver such further instruments including a trademark assignment and patent assignment in such forms as are required to
transfer record ownership of the Mark and Patent to Buyer on the records of the US Patent and Trademark Office and shall execute and
deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required
to carry out the intent of this Agreement so as to give full effect to the transactions contemplated by this Agreement.
ARTICLE
2
CONSIDERATION
2.1
Consideration.
In consideration for acquiring
the Purchased Assets from Seller, at the Closing Buyer is delivering to Seller Buyer’s promissory note in the amount of $750,000.
The note shall bear simple interest at the rate of ten percent (10%) per annum (the “Note”) and shall be payable in thirty-six
consecutive equal monthly installments commencing the month following the date hereof. In addition, Buyer shall promptly after the
date hereof issue to Seller or its designees one million two hundred fifty thousand (1,250,000) restricted shares of Buyer’s common
stock, having a par value of $0.0001 (the “Shares”). Seller acknowledges that the Shares have not as yet been
registered under the Securities Act of 1933, as amended, and the certificate(s) shall bear a restrictive legend. Upon issuance pursuant
hereto, the Shares shall be duly issued, fully paid for and non-assessable.
ARTICLE
3
SELLER’
REPRESENTATIONS AND WARRANTIES
The
Seller hereby represents and warrants to Buyer as follows:
3.1
Organization, etc. Seller is a corporation duly organized, validly existing and in good standing under the laws of the State
of Delaware. The Seller has all requisite power to own, lease and operate all of its respective assets owned by it in connection with
the conduct of its business, as well as to sell, transfer and assign the herein described Purchased Assets.
3.2
Authorization. The Seller has all requisite power and authority to enter into, execute, deliver, and perform its obligations
under this Agreement and those other agreements and instruments required to be executed or delivered under this Agreement, and to perform
its obligations thereunder.
3.3
Good Title. The Seller owns the Purchased Assets and is delivering to Buyer, good, valid and marketable title to the Purchased
Assets, free and clear of all mortgages, pledges, security interests, liens (including tax liens), charges, options or other encumbrances
of any nature whatsoever (collectively, the “Encumbrances”).
3.4
Consents and Approvals. No consent, approval, order or authorization of or from, or registration, notification, declaration
or filing with any individual or entity is required in connection with the performance of this Agreement by the Seller or the consummation
by the Seller and Buyer of the transactions contemplated herein.
ARTICLE
4
BUYER’S
REPRESENTATIONS AND WARRANTIES
Buyer
hereby represents and warrants to the Seller as follows:
4.1
Authorization and Power. Buyer has all power and authority to enter into this Agreement and to carry out the transactions
contemplated herein. This Agreement is the valid and binding legal obligation of Buyer enforceable against Buyer in accordance with its
terms.
4.2
Good Standing. The Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State
of Delaware with the requisite corporate power and authority to carry on its business as it is now being conducted and to own, operate
and lease its properties and assets.
4.3
Authorization. The Buyer has all requisite power and authority to enter into, execute, deliver, and perform its obligations
under this Agreement and those other agreements and instruments required to be executed or delivered under this Agreement, and to perform
its obligations thereunder.
4.4
Non-Contravention. Neither the execution, delivery nor performance of this Agreement and each other transaction document nor
the consummation of the transactions contemplated hereby or thereby will be in conflict with, or constitute a default, however defined
(or an event which, with the giving of due notice or lapse of time, or both, would constitute such a default), under any agreement to
which Buyer is a party; or violate any law.
4.5
Consents and Approvals. No consent is required by any person or entity in connection with the execution, delivery and performance
by Buyer of its obligation under the Agreement or the consummation of the transactions contemplated herein.
ARTICLE
5
INDEMNIFICATION
5.1
Survival of Representations and Warranties. The representations and warranties of the Parties contained herein or in any signed writing
delivered in connection with this Agreement will survive for a period of one (1) year after the execution of this Agreement.
5.2
Seller’s Indemnification. The Seller will indemnify Buyer and its officers, directors, agents and representatives, in their
capacities as such, and the successors, heirs and personal representatives of any of them (collectively, the “Buyer Indemnified
Parties”) against and hold them harmless from any and all damage, loss, liability and expense (including, without limitation,
reasonable expenses of investigation and attorneys’ fees and expenses) (collectively “Loss”) incurred
or suffered by any Buyer Indemnified Party arising out of or relating to any breach of any representation, warranty, covenant or other
agreement of the Seller contained herein, provided a claim for indemnification is made within one year of the execution of this Agreement.
5.3
Buyer’s Indemnification. The Buyer will indemnify Seller and its officers, directors, agents and representatives, in their
capacities as such, and the successors, heirs and personal representatives of any of them (collectively, the “Seller Indemnified
Parties”) against and hold them harmless from any and all damage, loss, liability and expense (including, without limitation,
reasonable expenses of investigation and attorneys’ fees and expenses) (collectively “Loss”) incurred
or suffered by any Seller Indemnified Party arising out of or relating to any breach of any representation, warranty, covenant or other
agreement of the Buyer contained herein, provided a claim for indemnification is made within one year of the execution of this Agreement.
ARTICLE
6
MISCELLANEOUS
PROVISIONS
6.1
Expenses. Buyer and the Seller will each bear their own costs and expenses relating to the transactions contemplated hereby, including
without limitation, fees and expenses of legal counsel, accountants, finders, consultants or other representatives for the services used,
hired or connected with the transactions contemplated hereby. Neither Buyer nor any Seller will charge any of his expenses to any other
Party or seek reimbursement from any Party for any of its expenses, except Buyer shall be responsible for all costs associated with the
transfer and registration of any of the Intellectual Property with either the U.S. Patent and Trademark office or any other governmental
agency involved with the registration and recognition of such properties.
6.2
Amendment and Modification. Subject to applicable law, this Agreement may be amended or modified by the Parties at any time with
respect to any of the terms contained herein; provided, however, that all such amendments and modifications must be in writing
duly executed by all of the Parties hereto.
6.3
Waiver of Compliance; Consents. Any failure of a Party to comply with any obligation, covenant, agreement or condition herein may
be expressly waived in writing by the Party entitled hereby to such compliance, but such waiver or failure to insist upon strict compliance
with such obligation, covenant, agreement or condition will not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure. No single or partial exercise of a right or remedy will preclude any other or further exercise thereof or of any other
right or remedy hereunder. Whenever this Agreement requires or permits the consent by or on behalf of a Party, such consent will be given
in writing in the same manner as for waivers of compliance.
6.4
No Third Party Beneficiaries. Nothing in this Agreement will entitle any person or entity (other than a Party hereto and its respective
successors and assigns permitted hereby) to any claim, cause of action, remedy or right of any kind.
6.5
Notices. All notices, requests, demands and other communications required or permitted hereunder will be made in writing and will
be deemed to have been duly given and effective: (i) on the date of delivery, if delivered personally; (ii) on the earlier of the fourth
(4th) day after mailing or the date of the return receipt acknowledgement, if mailed, postage prepaid, by certified or registered mail,
return receipt requested; or (iii) on the date of transmission, if sent by facsimile, telecopy, telegraph, telex or other similar telegraphic
communications equipment, or to such other person or address as the Parties hereto in writing in accordance with this subsection, as
follows:
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If
to Buyer, then to:
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USA
Equities Corp
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Attn:
Troy Grogan, President
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901
Northpoint Parkway Suite 302 West Palm Beach FL 33407
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Telephone:
(929) 379-6503
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If
to Seller, then to:
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MedScience
Research Group, Inc.
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Attn:
Marvin Smollar, President
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16469
Bridlewood Cir Delray Beach FL 33445
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Telephone:
(561) 515-5995
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or
to such other persons or addresses as Buyer and Seller will furnish to the other in writing in accordance with this Agreement.
6.6
Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the Parties and their
respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder will
be assigned (whether voluntarily, involuntarily, by operation of law or otherwise) by any Seller without the prior written consent of
Buyer.
6.7
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Florida without regard
to its conflict of law rules, principles or provisions of such state or of any other state. The sole jurisdiction and venue for any litigation
arising out of this Agreement will be an appropriate federal or district court located in Palm Beach County of the State of Florida,
and each Party hereby consents to such jurisdiction.
6.8
Counterparts. This Agreement may be executed simultaneously in one or more counterparts, each of which will be deemed an original,
but all of which together will constitute one and the same instrument.
6.9
Facsimile and Scanned Execution. Receipt by either Party of a counterpart of this Agreement manually signed and then scanned electronically
and E-mailed to the other Party or manually signed and then sent by facsimile transmission to the other Party shall, for all purposes,
be deemed to be an original counterpart with the same force and effect as the manually signed counterpart from which it was electronically
reproduced.
6.10
Entire Agreement. This Agreement and the exhibits and other writings referred to in this Agreement or in any such exhibit or other
writing are part of this Agreement, together they embody the entire agreement and understanding of the Parties hereto in respect of the
transactions contemplated by this Agreement and together they are referred to as this Agreement or the transactions contemplated hereby.
There are no restrictions, promises, warranties, agreements, covenants or undertakings, other than those expressly set forth or referred
to in this Agreement. This Agreement supersedes all prior agreements and understandings between the Parties with respect to the transaction
or transactions contemplated by this Agreement. Provisions of this Agreement will be interpreted to be valid and enforceable under applicable
Law to the extent that such interpretation does not materially alter this Agreement; provided, however, that if any such provision
becomes invalid or unenforceable under applicable Law such provision will be stricken to the extent necessary and the remainder of such
provisions and the remainder of this Agreement will continue in full force and effect.
6.11
No Broker or Finder. Neither the Seller or Buyer has employed any broker, finder, investment banker or financial advisor or
incurred any liability for any brokerage fee or commission, finder’s fee or financial advisory fee, in connection with the transactions
contemplated hereby, nor is there any basis known to Seller or Buyer for any such fee or commission to be claimed by any person or entity.
(Signatures
on Following Page)
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USA
Equities Corp as Buyer
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By:
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/s/
Troy Grogan
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Troy
Grogan, as President and Principal Shareholder,
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Respectively
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Date:
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June
23, 2021
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MedScience
Research Group, Inc., as Seller
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By:
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/s/
Marvin Smollar
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Marvin
Smollar, President
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Date:
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June
23, 2021
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EXHIBIT
1
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US
Method Patent “Method of Testing for Allergies” Number 9,655,556 B2
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US
Trademark “AllergiEnd” Reg. No. 4,618,114
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Web
Domain “AllergiEnd.com”
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Exhibit 10.3
CERTAIN
IDENTIFIED INFORMATION HAS BEEN OMITTED FROM THIS DOCUMENT BECAUSE IT IS BOTH NOT MATERIAL AND WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY
DISCLOSED, AND HAS BEEN MARKED WITH “[***]” TO INDICATE WHERE OMISSIONS HAVE BEEN MADE.
THIS
CONTRACT MANUFACTURING AGREEMENT (this “Agreement”) is entered into effect as of the 23rd day
of June, 2021 (the “Effective Date”) by and between MEDSCIENCE RESEARCH GROUP, INC., a Florida corporation
(“Manufacturer”), and USA EQUITIES CORP, (“Product Owner”). Manufacturer
and Product Owner are each referred to herein as a “Party” and collectively, the “Parties.”
RECITALS
WHEREAS,
Manufacturer is in the business of manufacturing products related to allergy diagnostics and allergen immunotherapy systems and related
components (all such products whether now or hereafter made available for sale by Manufacturer being hereinafter referred to as “Products”).
WHEREAS,
Product Owner wishes Manufacturer to produce Products for sale by Product Owner.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual representations and agreements set forth herein, and other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Manufacturer and Product Owner, intending to be
legally bound, hereby agree as follows:
1.
PURCHASE ORDERS; PRICING.
A.
Purchase Orders. Product Owner shall order Products in accordance with the terms and conditions of this Agreement. Each order for
the purchase of Products (a “Purchase Order”) must be submitted to Manufacturer by Product Owner by email to the email
address specified by Manufacturer. Each Purchase Order shall specify (i) the quantity of Products being ordered, (ii) the price to be
paid by Product Owner to Manufacturer for the Products ordered, (iii) payment terms granted by Manufacturer, and (iv) the requested receipt
date and delivery instructions for the applicable Products ordered. Receipt dates must be during the term of this Agreement, except Product
Owner may request, subject to Manufacturer’s acceptance in Manufacturer’s sole and absolute discretion, a Purchase Order
with a requested receipt date after the expiration or termination of this Agreement, in which case, if accepted by Manufacturer, the
terms and conditions of this Agreement shall apply to such shipment, but under no circumstances should such shipment be deemed to be
or construed as being a renewal or extension of this Agreement or the exclusivity rights granted to Product Owner herein. The Parties
agree that to the extent that any of the terms and conditions of this Agreement conflict or are inconsistent with the terms or conditions
of any Purchase Order submitted by Product Owner, the terms and conditions of this Agreement shall prevail and control to the extent
of any such conflict or inconsistency, unless the Purchase Order containing such conflicting or inconsistent terms and conditions is
countersigned by Manufacturer, in which case the terms and conditions set forth in such Purchase Order shall prevail and control to the
extent of any such conflict or inconstancy.
The
price to be paid for each Product is set forth on Exhibit A. Manufacturer shall not have the right to increase any price set forth on
Schedule A without giving Product Owner 90 days prior notice of such increase.
B.
Acceptance of Purchase Order. A Purchase Order submitted by Product Owner shall be deemed to have been accepted by, and shall be
binding upon, Manufacturer when it is countersigned by Manufacturer or if it is not rejected by Manufacturer, in whole or in part, by
written notice to Product Owner sent within five (5) business days of its receipt by Manufacturer. Notwithstanding anything contained
herein to the contrary, Manufacturer may only reject, cancel, or delay any Purchase Order placed by Product Owner which it has been deemed
to have accepted, pursuant to Section 3.B. below. In the event Manufacturer is unable to fill all of a Purchase Order for any reason,
it shall promptly notify Product Owner and Product Owner shall have the right, in its discretion, to cancel the subject Purchase Order.
Product Owner may change or cancel any of its Purchase Orders without penalty so long as Product Owner provides written notice to Manufacturer
and the Products have not yet been shipped; provided that Product Owner shall pay to Manufacturer a fee of twenty five percent
(25%) of the aggregate purchase price of the Products of which manufacturing has commenced that are subject to any Purchase Order which
has been materially changed or canceled by Product Owner.
C.
Invoices and Payment Terms. Manufacturer shall send Product Owner invoices via mail or email for each shipment. Product Owner shall
notify Manufacturer in writing if Product Owner disputes any charges set forth on an invoice within fifteen (15) calendar days after
receipt of such invoice, specifying in reasonable detail the items disputed and basis for the dispute. Thereafter, the Parties will work
in good faith to resolve such dispute as quickly as is reasonably possible. If any such dispute is not resolved within sixty (60) calendar
days after Product Owner’s receipt of the applicable invoice, then Manufacturer may refuse to accept any new Purchase orders under
this Agreement until such time as the dispute is resolved and all amounts agreed upon by the Parties to be due are paid in full. All
undisputed amounts on each invoice are due and payable within thirty (30) calendar days from the date of Product Owner’s receipt
of the invoice. Payments due hereunder must be made, at Product Owner’s option, by ACH, wire transfer, certified check or such
other method as may be agreed to by the Parties. Manufacturer reserves the right to change or modify payment terms upon sixty (60) calendar
days’ written notice to Product Owner at any time following a default by Product Owner of its payment obligations under this Agreement
with such changes or modifications to be effective for Purchase Orders submitted after such sixty (60) calendar day period. Invoices
will be issued upon shipment of the product from Manufacturer’s warehouse or production facility to Product Owner or to Product
Owner’s customer via direct shipment.
D.
Past Due Amounts. If any undisputed amount due Manufacturer by Product Owner, for any reason, becomes past due, Manufacturer shall
provide written notice to Product Owner and, if such amounts remain outstanding for fifteen (15) calendar days following receipt of such
notice, Manufacturer may at its option and without further notice withhold further shipments or deliveries of Products under this Agreement
until such past due invoices are paid in full.
E.
Taxes. Product Owner shall be responsible for any national, state or local sales, use, value added, or other tax, tariff, duty or
assessment levied or imposed by the United States or any foreign governmental authority arising out of or related to any of the transactions
contemplated by this Agreement, including sales of Product to Product Owner, other than taxes based upon Manufacturer’s income.
Product Owner must pay directly, or reimburse Manufacturer for the amount of such sales, use, value added or other tax, tariff, duty
or assessment which Manufacturer is at any time obligated to pay or collect with respect to or arising out of the sale of Products under
this Agreement.
2.
SHIPMENTS; PRODUCTS.
A.
Shipment Terms; Title and Risk of Loss. All Products purchased by Product Owner under this Agreement will be packaged for shipment
in Manufacturer’s standard containers, marked for shipment in the case of any purchase by Product Owner of Products from Manufacturer
for sale to Physician Customer at the address specified by Product Owner in the Purchase Order (the applicable destination being hereinafter
referred to as the “Destination”). All costs of shipment shall be paid by Manufacturer for any purchase by Product
Owner of Products from Manufacturer for sale to Physician Customers (and all such Products shall be directly shipped by Manufacturer
to each such Physician Customer at the address specified by Product Owner in the applicable Purchase Order unless Product Owner requests
that the Product be shipped to it). Title and risk of loss will pass F.O.B. Destination. For Products shipped to Product Owner, Product
Owner shall be solely responsible for all costs of shipment for the subsequent sale by Product Owner to Physician Customers. Manufacturer
shall ship Products on or before the requested receipt date designated in a Purchase Order (provided that such receipt date is not less
than twenty (20) business days after the Purchase Order is received by Manufacturer) and shall promptly notify Product Owner when Manufacturer
knows or has reason to believe that a shipment will not be delivered by the requested receipt date. Any expense for any special packaging
or any special delivery requested by Product Owner shall be borne by Product Owner.
B.
Manufacturer’s Right to Delay or Cancel. Notwithstanding Manufacturer’s obligations in this Agreement, Manufacturer may
refuse, cancel or delay any shipment of Products when Product Owner is delinquent in any payment for more than (30) calendar days, or
when Product Owner is in material breach of its obligations under this Agreement which has not been cured pursuant to Section 11.A.
C.
Acceptance of Shipments. Product Owner shall have ten (10) business days from the date of arrival of the shipment of the Products
at the applicable Destination or other shipping location agreed upon by the Parties to inspect the Products and notify Manufacturer in
writing of any discrepancies with respect to such Products, including but not limited to any discrepancies in the quantity or quality
of the Products. Products with respect to which Product Owner does not notify Manufacturer of any discrepancies in writing shall be deemed
accepted by Product Owner.
3.
INTELLECTUAL PROPERTY RIGHTS.
Manufacturer’s Marks. Unless otherwise directed by Product Owner, Products shall bear and shall be shipped in packaging bearing
Manufacturer’s logos, trademarks, and trade names, and shall be accompanied by branding and marketing materials created by or on
behalf of Manufacturer. Manufacturer shall give Product Owner ninety (90) days’ notice of Manufacturer’s intent to change
the containers or packaging for Products or the logos, trademarks, and trade names, and branding and marketing materials used in connection
with the Products. Manufacturer hereby grants to Product Owner a revocable, non-transferable, non-exclusive, limited license to use Manufacturer’s
logos, trademarks, and trade names, together with all branding and marketing materials created by or on behalf of Manufacturer in connection
with the Products, (collectively the “Manufacturer IP”), solely in connection with the marketing, advertisement and
sale of the Products. Such license shall immediately terminate upon the expiration or termination of this Agreement. Product Owner shall
strictly comply with all standards of use for the Manufacturer IP and must at all times display appropriate trademark and copyright notices
as instructed by Manufacturer. Product Owner acknowledges and agrees that the Manufacturer IP and other intellectual property provided
to Product Owner by Manufacturer, if any, are the sole and exclusive property of Manufacturer. Product Owner shall not acquire any right,
title or interest under this Agreement in any patent, copyright, Manufacturer IP or other intellectual property right of any kind of
Manufacturer. No implied license, patent, copyright or other intellectual property right of Manufacturer is granted under this Agreement
or otherwise. During the term of this Agreement and thereafter, Product Owner shall not do anything that will in any manner infringe,
impeach, dilute or lessen the value of the Manufacturer IP, patents, copyrights or other intellectual property of Manufacturer or the
goodwill associated therewith or that will tend to prejudice the reputation of the Manufacturer or the sale of any Products.
4.
CONFIDENTIAL INFORMATION.
A.
Confidential Information. The Parties acknowledge and agree that during the term of this Agreement, each may receive confidential
information from the other Party. “Confidential Information” shall mean (i) information relating to a Party’s
and its affiliates’ products or business including, but not limited to, the business plans, financial records, customers, suppliers,
products, product samples, strategies, inventions, procedures, sales aids or literature, technical data, advice or knowledge, contractual
agreements, pricing, price lists, product white papers, plans, designs, specifications, and know-how or other intellectual property,
that may be at any time furnished, communicated or delivered by either party to the other party whether in oral, tangible, electronic
or other form and (ii) all other non-public information provided by one Party to the other including, but not limited, to financial,
technical and business information, and all non-promotional materials furnished by one Party to another.
B.
Exceptions. The “Receiving Party” shall not have any obligations to preserve the confidential nature of any Confidential
Information that (a) Receiving Party can demonstrate by competent evidence was rightfully in the Receiving Party’s possession before
receipt from the “Disclosing Party”; (b) is or becomes a matter of public knowledge through no fault of the Receiving
Party; (c) is rightfully received by Receiving Party from a third party without, to the best of Receiving Party’s knowledge, a
duty of confidentiality; (d) is independently developed by Receiving Party without use of the Confidential Information; or (e) is disclosed
by Receiving Party with Disclosing Party’s prior written approval.
C.
Use of Confidential Information; Standard of Care. The Receiving Party shall maintain the Confidential Information in confidence
and disclose the Confidential Information only to its employees, subcontractors and consultants who have a need to know such Confidential
Information in order to fulfill the business affairs and transactions between the Parties contemplated by this Agreement and who are
under confidentiality obligations no less restrictive as, or who have been advised of the confidentiality obligations set forth in, this
Agreement. The Receiving Party shall remain responsible for breaches of this Agreement arising from the acts of its employees, subcontractors
and consultants to whom it provides the Disclosing Party’s Confidential information. The Receiving Party shall protect Confidential
Information by using the same degree of care as Receiving Party uses to protect its own information of a like nature, but no less than
a reasonable degree of care, to prevent the unauthorized use, disclosure, dissemination, or publication of the Confidential Information.
The Receiving Party agrees not to use the Disclosing Party’s Confidential Information for its own purpose other than in connection
with the transactions contemplated by this Agreement or for the benefit of any third party, without the prior written approval of the
Disclosing Party. The Receiving Party shall promptly return or certify destruction of all copies of Confidential Information upon request
by the Disclosing Party or upon the expiration or earlier termination of this Agreement.
D.
Equitable Relief. The Receiving Party hereby agrees and acknowledges that any breach or threatened breach of this Agreement regarding
the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate
remedy at law. In addition to other remedies provided by law or at equity, in such event the Disclosing Party shall be entitled to seek
an injunction, without bond, preventing any further breach of this Agreement by the Receiving Party.
5.
INSURANCE. Manufacturer shall maintain, during the term of this Agreement, Commercial General Liability Insurance with minimum limits,
including under any General Liability Umbrella Policies, of not less than $2,000,000 combined single limit for bodily injury and property
damage on Products purchased by Product Owner for resale. Manufacturer shall use commercially reasonable efforts to provide Product Owner
with thirty (30) calendar days’ prior written notice of any change or cancellation in any applicable insurance policies.
Product
Owner shall maintain, during the term of this Agreement, Commercial General Liability Insurance with minimum limits, including under
any General Liability Umbrella Policies, of not less than $2,000,000 combined single limit for bodily injury and property damage. Product
Owner shall use commercially reasonable efforts to provide Manufacturer with thirty (30) calendar days’ prior written notice of
any change or cancellation in any applicable insurance policies.
6.
WARRANTY; RECALL.
A.
Warranty. Manufacturer warrants to Product Owner, for a period of one year from the date of delivery by Manufacturer to the intended
recipient thereof, that any Products delivered by Manufacturer pursuant to this Agreement shall conform in all material respects to Manufacturer’s
written specifications for such Products, and shall be free of defects in materials and workmanship. Manufacturer further warrants to
Product Owner that it has title to the Products to be conveyed hereunder and has the right to sell the same and that at the time of delivery,
such Products shall be free of any security interest or other lien or any other encumbrances whatsoever (the warranties provided in the
preceding two sentences being hereinafter referred to as the “Limited Warranty”). Except for the Limited Warranty,
Manufacturer makes no warranties or representations to Product Owner or any other person with respect to the Products or any services
provided to Product Owner or any other person. Manufacturer may not change any of the terms of the Limited Warranty at any time, without
written consent from Product Owner unless Manufacturer notifies Product Owner in writing at least one hundred and twenty (120) calendar
days prior to any such change. Any such change shall not apply to any Products sold to or ordered by Product Owner prior to the change.
Product Owner will not alter the Limited Warranty, warranty disclaimers and limitation of liability without the prior written authorization
of Manufacturer, nor extend or make any additional warranty or representation regarding the Products unless expressly authorized by Manufacturer.
THE
LIMITED WARRANTY REFERRED TO IN THIS SECTION IS THE ONLY WARRANTY, EXPRESS OR IMPLIED, THAT MANUFACTURER MAKES WITH RESPECT TO THE PRODUCTS.
MANUFACTURER SPECIFICALLY DISCLAIMS ALL OTHER IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
B.
Warranty Claims. The Limited Warranty is effective only if Product Owner gives prompt written notice to Manufacturer of any alleged
breach of the Limited Warranty, which notice shall specifically describe the problem and shall state the date of sale and name and location
of the recipient of the Product originally shipped by Manufacturer. Notwithstanding anything to the contrary contained herein, Manufacturer
shall have no obligation under the Limited Warranty unless it receives such notice within thirty (30) days following the expiration of
the warranty period. In the event of any breach of the Limited Warranty Manufacturer’s sole obligation is to replace each non-conforming
Product within a reasonable period of time and to pay for the costs of shipment to the original recipient of the Product or as otherwise
specified by Product Owner.
C.
Recall. In the event that: (i) any applicable federal, state or foreign regulatory authority should issue a request, directive or
order that a Product be recalled; (ii) a court of competent jurisdiction orders such a recall or; (iii) Manufacturer determines that
the Product represents a risk of injury or customer deception or is otherwise defective and that the recall of a Product is appropriate
(“Recall”), Manufacturer shall have sole right and responsibility for implementing the Recall. Product Owner will
provide cooperation and assistance to Manufacturer in connection therewith, as may be reasonably requested by Manufacturer. Manufacturer
shall be solely responsible for all expenses affecting such Recall (including any reasonable out-of-pocket expenses incurred by Product
Owner in connection with such cooperation, as directed in writing by Manufacturer).
7.
INDEMNIFICATION.
A.
Indemnity Obligations for Intellectual Property Infringement. Manufacturer agrees to defend, indemnify and hold harmless Product
Owner from and against any and all claims, losses, damages, suits, expenses (including reasonable attorneys’ fees) and costs (collectively
“Claims”) brought or alleged by a third party that the Manufacturer IP or any Products sold to Product Owner infringe
any U.S. patent, trademark or copyright. Product Owner shall reasonably cooperate with Manufacturer, its insurance company and its legal
counsel in its defense of such Claims. If the use or sale of any Products furnished under this Agreement is enjoined as a result of a
Claim, Manufacturer shall either obtain on behalf of the Product Owner the right to continue to use or sell such Products, substitute
an equivalent product reasonably acceptable to Product Owner in its place, or reimburse Product Owner the purchase price of the Products,
costs incurred by Product Owner as a result of such cancellation, and any and all losses or costs incurred as a result of Product Owner’s
breach of any purchaser order or other agreement with its customers. Notwithstanding the foregoing, this indemnity shall not apply or
cover any Claims based upon any infringement or alleged infringement of any patent, trademark or copyright resulting from the alteration
or unauthorized (by Manufacturer) use of any Manufacturer IP or Products by Product Owner or a Product Owner representative or the combination
of any Products with any other products or the combination of any Manufacturer IP with any other mark, if such infringement claim would
have been avoided but for such alteration, combination or unauthorized use by Product Owner or any Product Owner representative. Product
Owner shall also have the right to participate in the defense of any such action and have the right to hire its own legal counsel at
Product Owner’s expense. This indemnity shall not cover any Claims in which Product Owner fails to provide Manufacturer with prompt
written notice of the Claim which lack of notice materially prejudices the defense of the Claim.
B.
Manufacturer’s Additional Indemnity Obligations. Notwithstanding anything herein to the contrary, in addition to all other
rights and remedies available at law or in equity, Manufacturer hereby agrees to defend, indemnify and hold harmless Product Owner from
and against any and all third party Claims (i) arising out of any defects in any Products existing at the time such Products are sold
by Manufacturer to Product Owner, or (ii) arising out of the negligent acts or omissions or willful misconduct of Manufacturer, its employees,
agents or representatives with respect to the Products or its performance of this Agreement. Product Owner shall reasonably cooperate
with Manufacturer, its insurance company and its legal counsel in its defense of such Claims. Product Owner shall also have the right
to participate in the defense of any such action and have the right to hire its own legal counsel at Product Owner’s expense. This
indemnity shall not cover any Claims in which Product Owner fails to provide Manufacturer with prompt written notice of the Claim which
lack of notice materially prejudices the defense of the Claim.
C.
Product Owner’s Indemnity Obligations to Manufacturer. Product Owner hereby agrees to defend, indemnify and hold harmless Manufacturer,
its affiliates and their respective officers directors, employees and agents from and against any and all Claims (i) arising out of the
negligent acts or omissions or willful misconduct of Product Owner, its employees, agents or representatives with respect to its performance
of this Agreement, sale of Products, or otherwise, (ii) arising out of the alteration or modification of the Products or Manufacturer
IP by Product Owner or its employees, agents or representatives, or (iii) alleging that the Product Owner’s Marks infringe or otherwise
violate the intellectual property rights of a third party. This indemnity shall not cover any Claims in which Manufacturer fails to provide
Product Owner with prompt written notice which lack of notice prejudices the defense of the Claim. Manufacturer shall also have the right
to participate in the defense of any such action and have the right to hire its own legal counsel at Manufacturer’s expense.
D.
Settlement of Claims. In no event shall a party seeking or entitled to indemnification from a Party hereunder settle, compromise,
agree to a judgment or take any similar action with respect to any Claim without the written consent of the Party from whom indemnification
is sought.
8.
LIMITATION OF LIABILITY.
EXCEPT
FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OF THIS AGREEMENT AND CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5
OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BY LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL,
INDIRECT, STATUTORY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE,
LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH
OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN
REASONABLY FORESEEN.
9.
TERM. This Agreement shall commence on the Effective Date and shall end on the tenth anniversary of the Effective Date (the “Initial
Term”) unless earlier terminated pursuant to Section 11 hereof. The Initial Term shall automatically renew for successive renewal
terms of five (5) years each (each, a “Renewal Term”), unless either Party provides the other Party with written notice
of its intention not to renew the Initial Term or any Renewal Term, as applicable, at least sixty (60) days prior to the expiration of
the then current Initial Term or Renewal Term.
10.
TERMINATION.
A.
Termination for Breach. Either Party may terminate this Agreement at any time in the event of a material breach by the other Party
that remains uncured after thirty (30) calendar days following written notice thereof. Such termination shall be effective immediately
and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination
shall be in addition to any other remedies that may be available to the non-breaching Party.
B.
Termination for Financial Insecurity. Either Party may terminate this Agreement and any outstanding Purchase Orders (to the extent
Products have not already been delivered to the carrier for shipment) immediately at its option upon written notice if the other Party:
(i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related
to its liquidation or solvency, which proceeding is not dismissed within sixty (60) calendar days after its filing; (iii) ceases to do
business in the normal course; or (iv) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and
automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing
in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. §365.
C.
Obligations upon Termination. Upon termination of this Agreement, Product Owner shall cease to be an authorized reseller of the Products
and shall have no right to use Manufacturer’s IP other than in connection with the liquidation of Product on hand or received after
the date of termination and (i) all unaccepted Purchase Orders may be cancelled by Product Owner or Manufacturer without liability, and
(ii) Product Owner may, at its option, resell and deliver to Manufacturer, free and clear of all liens and encumbrances, any or all Products
that (A) are subject to Purchase Orders accepted by Manufacturer whether or not the applicable Products have been shipped as of the date
of termination and (B) were manufactured, shipped or received as of the date of termination, in each case that are in new condition and
in the original factory packaging at the original purchase price of any such Products that Product Owner elects to resell to Manufacturer
less a restocking charge of 50% of such amount payable by Manufacturer upon receipt of such Products. Restocking is waived in the event
the Manufacturer terminates Product Owner, other than if termination is a Termination for Breach as outlined in 10.A. Within ninety (90)
calendar days of termination of this Agreement, Product Owner shall remove and not thereafter use any sign, display, or other advertising
or marketing means containing Manufacturer Marks, except as provided in this section. Product Owner may continue to use in-store materials
containing the Manufacturer’s IP as reasonably required for the resale of the Products which may be remaining in Product Owner’s
possession after termination, which materials Product Owner may continue to utilize until all remaining Products have been sold or one
hundred eighty (180) calendar days after termination, whichever comes first, after which Product Owner shall cease the use of any such
Manufacturer IP.
11.
COMPLIANCE WITH LAWS. Product Owner acknowledges and understands that the Products may be subject to restrictions upon export from
the United States and upon resale after export. Product Owner therefore represents and warrants that it shall comply fully with all relevant
regulations of the U.S. Department of Commerce, with the U.S. Export Administration Act, and with any other import and/or export control
laws or regulations of the United States or any other jurisdiction.
12.
GENERAL TERMS.
A.
Independent Contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or
imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and
the other Party’s employees or agents. Neither Manufacturer nor Product Owner has the authority to bind the other, to incur any
liability or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of its employees’ salaries
(including withholding of income taxes and social security), workers compensation, and all other employment benefits.
B.
Assignment. Neither this Agreement, nor any right or interest herein, may be assigned, in whole or in part, without the express written
consent of the other Party. Any assignment without such consent shall be null and void. Notwithstanding the foregoing, the Product Owner
may subcontract its rights or obligations under this Agreement with the prior written consent of Manufacturer. Either party may assign
this Agreement if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or
substantially all of a Party’s assets. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their
successors and legal representatives. Except as set forth in Section 8, there are no third-party beneficiaries to this Agreement.
C.
Notices. Unless otherwise agreed to by the Parties, all notices shall be deemed effective when received and made in writing by either
(i) certified mail, return receipt requested, (ii) nationally recognized overnight courier, or (iii) fax with confirmation, addressed
to the party to be notified at the following address or to such other address as such Party shall specify by like notice hereunder:
If
to Manufacturer:
MEDSCIENCE
RESEARCH GROUP, INC.
16469
BRIDLEWOOD CIR
DELRAY
BEACH, FL 33445
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Attn:
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MEDSCIENCE
- CORPORATE
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Email:
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[***]
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Fax:
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561-258-0533
|
If
to Product Owner:
USA
EQUITIES CORP
901
Northpoint Parkway, Suite 302.
WEST
PALM BEACH, FL 33407
|
|
Attn:
|
USA
EQUITIES CORP - CORPORATE
|
|
|
Email:
|
[***]
|
|
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Fax:
|
561-258-0533
|
(with
a copy to, which does not serve as notice):
Mandelbaum
Salsburg Attorneys at Law
1270
Avenue of the Americas
Suite
1808
NEW
YORK, NY 10020
Attn:
VINCENT McGILL
Email:
[***]
Fax:
917-383-1228
Either
Party, by written notice to the other pursuant to this section, may change its address or designees for receiving such notices.
D.
Force Majeure. Neither Party shall liable hereunder for any failure or delay in the performance of its obligations under this Agreement
if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement
weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event the non-performing
party shall be excused from its obligations for the period of the delay and for a reasonable time thereafter. Each Party shall use reasonable
efforts to notify the other Party of the occurrence of such an event within three (3) business days of its occurrence.
E.
Governing Law; Venue; Jury Waiver. This Agreement shall be governed by the laws of the State of Florida, without giving effect to
the principles of conflicts of law of such state and shall be binding upon the Parties hereto in the United States and worldwide. Any
claims or legal actions by one Party against the other arising under this Agreement or concerning any rights under this Agreement shall
be commenced and maintained in any state or federal court located in Palm Beach County, Florida. Both Parties hereby submit to the jurisdiction
and venue of any such court. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY
WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
F.
Attorney’s Fees. If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights under
this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation,
or other litigation expenses from the other Party.
G.
Survival. The provisions of this Agreement which by their sense and context should survive any termination of expiration of this
Agreement, including without limitation sections 4 (confidentiality), 6 (warranty), 7 (indemnification), 8 (limitation of liability),
11 (compliance with laws) and 12 (general terms) shall so survive.
H.
Authorized Signatories. It is agreed and warranted by the Parties that the individuals singing this Agreement on behalf of the respective
Parties are authorized to execute such an agreement. No further proof of authorization shall be required.
I.
Severability. If any provision or portion of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid,
or unenforceable, the remaining provisions or portions shall remain in full force and effect.
J.
No Strict Construction. This Agreement shall not be construed more strongly against either party regardless of which party is more
responsible for its preparation.
K.
Counterparts. This Agreement may be executed by facsimile and in one or more counterparts, each of which will be deemed to be an
original, but all of which together will constitute one and the same instrument, without necessity of production of the others.
L.
Entire Agreement; Modification; Waiver. This Agreement is the entire agreement between the Parties with respect to the subject matter
and supersedes any prior agreement or communications between the Parties hereto, whether written or oral. This Agreement may be modified
only by a written amendment signed by authorized representatives of both Parties. No waiver of any term or right in this Agreement shall
be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any
provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce
such provision thereafter.
[SIGNATURES
ON FOLLOWING PAGE]
IN
WITNESS WHEREOF, the parties hereto have caused this Distribution Agreement to be duly executed by their duly authorized representatives
as of the Effective Date.
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MANUFACTURER
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MEDSCIENCE
RESEARCH GROUP, INC.
|
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|
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By:
|
/s/
Marvin Smollar
|
|
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Name:
|
Marvin
Smollar
|
|
|
Title:
|
Senior
Manager
|
|
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|
|
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PRODUCT
OWNER
|
|
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|
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USA
EQUITIES CORP.
|
|
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|
|
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By:
|
/s/
Troy Grogan
|
|
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Name:
|
Troy
Grogan
|
|
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Title:
|
Chief
Executive Officer
|
Exhibit
A
The
Product Owner’s Product Pricing from Manufacturer is as follows:
Item
4200, the complete AllergiEnd 42 test Kit (Environmental)…………..….. [***]
Item
3600, the complete AllergiEnd 42 test Kit (Food)……..………………..….. [***]
Item
1038, AllergiEnd Low Dose Sublingual Immunotherapy (SLIT) Unit.......... [***]
Item
1039, AllergiEnd Maintenance Dose Sublingual Immunotherapy (SLIT) Unit[***]
Item
3007 to 3008 Allergen Subcutaneous Injectable Mixtures (SCIT) per 46 dose set [***]
Item
3009 Allergen Subcutaneous Injectable Maintenance 12 Dose vial [***]
