CONTRACT FOR DISTRIBUTION CENTER AND LOGISTICS SERVICES

TCB – Technology Consult Berlin GmbH (the "Logistic Service Provider"), a company organized and existing under the laws of the Germany, with its head office located at:

 

Rheinstrasse 45-46, 12161 Berlin, Germany

MEDOVEX (the "Company"), a company organized and existing under the laws of the Georgia of the United States of America, with its head office located at:

 

3279 Hardee Avenue, Atlanta, GA 30341, USA

(a)

MEDOVEX agrees to employ Logistics Service Provider to perform the services set forth herein and Logistics Service Provider agrees to perform these services. The scope of this employment will be as follows:

(b)

This is a non-exclusive agreement.  Logistics Service Provider is free to perform services for other shippers and MEDOVEX is free to employ other providers to perform services covered by this Agreement.

(a)

Receipt, management, and transmission of MEDOVEX shipping data;

(b)

Management of MEDOVEX’s import program on a Purchase Order basis;

(c)

Management of MEDOVEX vendors;

(d)

Receiving, booking, routing and dispatch of MEDOVEX’s cargo;

(e)

Warehousing, cargo consolidation and LCL services;

(f)

Preparation and management of shipping documentation, including documentation necessary to effect importation into the destination countries and release of cargo;

(g)

Preparation of reports to MEDOVEX;

(h)

Coordination with other MEDOVEX service providers in the importation process; and

(i)

Such other tasks as may be reasonably necessary to effectuate the safe, expeditious, and efficient flow of MEDOVEX’s import goods and related documentation.

(a)

Account Management. Logistics Service Provider shall designate a senior level executive to be the Account Manager responsible for overseeing MEDOVEX’s account. The Account Manager must have the authority to make decisions concerning all elements of MEDOVEX’s account.

(b)

Procedures and Metrics. Logistics Service Provider and MEDOVEX shall cooperate in developing and continually improving the SOP for activities under this Agreement. Logistics Service Provider and MEDOVEX shall also agree on performance levels and service quality criteria (“Service Standards”) to measure and evaluate Logistics Service Provider’s services under this Agreement. These Service Standards shall be made a part of the SOP in Exhibit A [Note: Exhibit A already used for MEDOVEX affiliate listings]. Logistics Service Provider will provide reports in a format and at intervals determined by MEDOVEX measuring its performance under the Service Standards. [Note: We have not reviewed SOPs or Service Standards]

(a)

MEDOVEX agrees to pay to Logistics Service Provider the rates and charges set forth in Exhibit B, attached hereto and incorporated herein by reference, as full and complete compensation for the services to be provided hereunder. Such rates may be amended or changed only with the mutual written agreement of both parties.

(b)

Logistics Service Provider shall invoice MEDOVEX within two to five business days of the end of each month for all compensable services performed during that week. Invoices shall be in the form attached to this Agreement as Exhibit C. Payment of each invoice shall be made by MEDOVEX within 15 days following receipt. Logistics Service Provider agrees that no penalties or interest will be assessed to another 15 days for past due amounts.

(a)

Logistics Service Provider agrees that it will be fully responsible, without limitation, for any loss or damage to MEDOVEX’s cargo while such cargo is in the possession or control of Logistics Service Provider. Logistics Service Provider’s liability shall be for the cost of the cargo plus any expenses incurred by MEDOVEX pertaining to the cargo to the time of the loss or damage including, without limitation, duties, transportation charges, forwarding and brokerage fees, etc. This provision shall not limit or detract from MEDOVEX’s right to assert claims against other parties for the same damages including, without limitation, the ocean carrier under whose through bill of lading the cargo is carried.

(b)

Logistics Service Provider agrees that it will also be liable, without limitation, for any direct extra expenses incurred by MEDOVEX arising from Logistics Service Provider’s failure to discharge its obligations and responsibilities under this Agreement.

(c)

MEDOVEX shall have (i) twelve months from the date of delivery, or (ii) a reasonable time if the goods are not delivered, in which to file a claim with Logistics Service Provider.

(d)

All claims shall be paid, settled, or disallowed by Logistics Service Provider within 30 days of filing. If no response is received within this time, MEDOVEX will assume the claim has been allowed and deduct the amount claimed from the next payment(s) of Logistic Service Provider invoices. Whenever Logistics Service Provider disallows a claim by MEDOVEX, it shall provide a lawful reason for doing so, which shall be stated in writing by Logistics Service Provider itself, not its insurer. MEDOVEX shall have 180 days from the date of Logistic Service Provider’s response to its claim in which to file suit against Logistic Service Provider for loss or damages arising from such claim.

(e)

Logistics Service Provider shall indemnify, defend and hold harmless MEDOVEX, its officers, employees, agents, representatives and affiliates from and against any and all liability, loss, damages, claims, suits, costs or expenses, including reasonable attorneys’ fees, asserted against MEDOVEX based upon, arising out of or in connection with (i) any acts or omissions by Logistics Service Provider or its agents, sub-agents, representatives or employees, (ii) any breach or non-fulfillment of any representation, warranty or covenant of Logistics Service Provider provided herein, or (iii) any claim, losses, damages, costs, or expenses asserted against MEDOVEX by Logistics Service Provider, its employees, agents or any other person for any injury (including sickness, disease or death) or claim or injury to property arising out of or in connection with the performance of this Agreement.

(f)

No salvage of any kind or nature shall be sold or offered for sale or in any other way disposed of to any third party without the prior written consent of MEDOVEX. All salvage receipts shall be payable to MEDOVEX and credited against MEDOVEX’s claim against Logistics Service Provider.

(g)

Logistics Service Provider’s responsibilities and liabilities set forth above shall not be limited in any manner whatsoever by any terms incorporated by reference into this Agreement or contained in documentation issued by Logistics Service Provider.

(h)

Indemnity. Logistics Service Provider shall at all times (both during and after the term hereof) indemnify, defend and hold harmless MEDOVEX, its agents and employees against and from any and all claims, losses, damages, costs, penalties, fines, legal fees and all other expenses relating to, arising out of or connected with Logistics Service Provider’s services and/or acts or omissions of Logistics Service Provider, its employees or agents, of every nature or character (including, but without limitations, claims for personal injury, death and damage to property, clean-up costs from commodity spills and damage to the environment) asserted against MEDOVEX (a) by any agent or employee of Logistics Service Provider or (b) by any other person.

(a)

Logistics Service Provider shall at all times during the term of this Agreement and any period during which Logistics Service Provider provides services pursuant to Section 22 hereof following termination of this Agreement, at its own expense, have and maintain in full force and effect, Comprehensive General Liability and Cargo Damage Insurance with reliable insurance companies acceptable to MEDOVEX, and in the following amounts, which amounts may be subsequently modified by MEDOVEX upon 60 days written notice: $ 1 Million Comprehensive General Liability; $250,000 Cargo Damage. (Note: Are these sufficient amounts in [CURRENCY])

(b)

Logistics Service Provider will not cancel or change coverage of the insurance without first giving MEDOVEX 30 days prior written notice, and that the Logistics Service Provider will be liable to MEDOVEX for any and all damages resulting from it’s failure to give such notice.

(a)

Logistics Service Provider shall keep records hereunder according to reasonable procedures established by MEDOVEX and communicated to Logistics Service Provider from time to time. Logistics Service Provider shall promptly furnish to MEDOVEX copies of all records kept hereunder upon request.

(b)

MEDOVEX, its auditors or other authorized representatives or employees shall, at all reasonable times and upon reasonable notice, be afforded access to, and shall have the right to inspect and audit, all of Logistics Service Provider’s books and records relating to the performance of this Agreement to the extent reasonably necessary to assure that Logistics Service Provider is complying with the terms of this Agreement.

(c)

Logistics Service Provider shall preserve all records relating to this Agreement, including, without limitation, licenses, permits, evidences of authority issued by governmental bodies, memoranda and correspondence, for the period of time specified by MEDOVEX, or as required by law, whichever is greater.

(d)

MEDOVEX shall have the right to obtain assurances from Logistics Service Provider at any time concerning Logistics Service Provider’s financial and economic condition.

(a)

Logistics Service Provider shall comply with all laws of the countries in which services are rendered to MEDOVEX.

(b)

Logistics Service Provider, in rendering services under this Agreement, has not and will not pay, offer, or promise to pay, or authorize the payment, directly or indirectly, through third persons or otherwise, of any monies or anything of value to any government official (for purposes of this Agreement this term is defined to include any officer or employee of a government or any department, agency or instrumentality thereof,

(c)

or any public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency or instrumentality or for or on behalf of any such public international organization and any political party, official thereof or candidate for political office) of any country, for the purpose of: influencing any official act or decision by such official, person or party, or inducing such official, person or party to perform or omit any act in violation of his or its lawful duty,

(d)

or to secure any improper advantage, or inducing such official, person or party to use his or its influence with a government or any of its agencies or instrumentalities to affect or influence any act or decision of such government or agency or instrumentality in order to obtain, retain or direct business for, with or to any person or entity (any such payment is a “Prohibited Payment”).

(e)

Logistics Service Provider shall not offer or make any payment, loan or transfer of value to any director, officer, employee or agent of MEDOVEX or of its actual or potential customers or suppliers, or offer to make any payment, loan or transfer of value on behalf of MEDOVEX that is prohibited by any applicable law.

(f)

It is the intent of the MEDOVEX that no payments, loans or transfer of value shall be made that have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining or retaining business. Logistics Service Provider will ensure that no commission or fee is paid by Logistics Service Provider to any third party without MEDOVEX’s prior, written approval.

(g)

Before any shareholder, officer, director or employee of Logistics Service Provider or any related party rendering services to MEDOVEX becomes a government official (as defined in subparagraph (b) above) Logistics Service Provider shall notify MEDOVEX for purposes of determining whether continued employment would be inconsistent with the representations and warranties set forth in this Section 17. MEDOVEX’s determination on this question shall be binding.

(h)

In any case where Logistics Service Provider proposes to render services to MEDOVEX by a related entity and a government official of the territory in which the services will be rendered has a financial interest in such entity, Logistics Service Provider will provide advance notification to MEDOVEX for purposes of determining whether utilization of such entity would be inconsistent with the representations and warranties set forth in this Section 17. MEDOVEX’s determination on this question shall be binding.

(i)

All expenses incurred shall be reported fully and accurately in the books and records of Logistics Service Provider and all such books and records showing expenses shall reflect the purpose of each expense and the recipient and the beneficiary of such expense, and that there will be written records of each and every service Logistics Service Provider performs on behalf of MEDOVEX.

(j)

To confirm compliance with the provisions of this Section 17, Logistics Service Provider shall answer in reasonable detail any questionnaires or other written or oral communications relating thereto from MEDOVEX, or from their outside auditors, attorneys or other designees, and shall also, upon request, make its books and records related to this provision available to MEDOVEX, or to its outside auditors, attorneys or other designees.

(k)

In the event that MEDOVEX concludes that there has been a breach of the representations and warranties set forth in this Section 17, it may terminate this Agreement without further liability or obligation to pay any fees, which are associated with the activities that caused such breach.

(a)

This Agreement may be terminated by either party, with or without cause, upon ninety (90) days written notice before the end of each contract period as defined in section 2 of this agreement. Notwithstanding the above, either party may terminate this Agreement upon immediate written notice if the other party has failed to cure a material breach of this Agreement within sixty (60) days following written notice thereof.

(b)

If a petition in bankruptcy is filed against either party of this Agreement, or a party becomes becomes insolvent, makes a general assignment for the benefit of creditors or a proposal in bankruptcy, the other party may terminate this Agreement immediately without notice and without further obligation.

(c)

Failure by either party to comply with any of its material obligations hereunder shall entitle the other party to give notice to the defaulting party requiring such defaulting party to cure such default. If such default is not cured within 30 days from receipt of such notice, the notifying party shall be entitled, without prejudice to any of its other rights under this Agreement or by law, to terminate this Agreement upon the conclusion of such 30-day cure period by giving written notice to the defaulting party upon the conclusion of such cure period.

(d)

Either party may terminate this Agreement by giving 30 days written notice to the end of a month if the other party is acquired or dissolved or has a minimum change of 51% in ownership control (directly or indirectly).

(a)

Neither MEDOVEX nor Logistics Service Provider shall be liable for damages for any delay or failure to perform any of the terms and provisions of this Agreement arising from causes beyond its control, including but not limited to, acts of God or public enemies, acts of civil or military authority, labor disputes, fires, riots, wars or conditions of war, embargoes, accidents, epidemics, floods or other unusually severe weather, closing or obstruction of highways, bridges or ferries, any of which have a material, substantial and adverse affect on either parties ability to perform pursuant to the terms of this Agreement.

(b)

The party claiming force majeure shall notify the other party within 48 hours of when it learns of the existence of such a condition and shall similarly notify the other within a period of two working days after the condition is remedied. If such condition of force majeure, however, is not remedied within 20 days, the unaffected party shall have the right to terminate this Agreement.

MEDOVEX: 

Medovex Corporation3279 Hardee Avenue, Atlanta, GA 30341, USA

 LOGISTIC SERVICES PROVIDER

 

 Medovex Corporation

 

_________________

Authorized Signature

 

_________________

Authorized Signature

 

 

-  Store your products properly 


 

-  Managing of expiration dates 


 

-  Using our warehousing software with LOT-Management

 

-

Provide and guarantee traceability for products in and out


 

-  Shipping goods to (enter Countries) other Countries on request 


 

-  Invoicing of your goods with our own accountancy system 


 

-  Customs regulations and applications for shipments leaving the EU

 

-  Management of customer complaints 


 

-  Issuing of monthly reports to customer 


 

-  English and German speaking customer service via mail, fax and 
telephone on regular business days Mo-Fr 8 am – 5 pm (except public holidays in the Federal State of Berlin, Germany) 


 

-  Customer service in other languages must be ordered separately 


 

-  Order cut-off time 2pm 
Central European Time

 

 

-  Acting as a Fiscal Representative (necessary, if there is no legal entity in the AP Market) 


 

-  All paperwork and contacts with local authorities 


 

-  All paperwork and contacts with financial authorities 


 

-  Full accountancy procedures including receipt storing for more than 10 
years (legally required) 


 

-  Preparation of VAT tax declarations 


 

-  Handling and management of VAT 


 

-  Communication with a Certified Public Accountant (CPA costs for annual 
tax declaration and audited statements are not included) 


 

-  Management of customs requests on taxation questions 


 

-  Communication with Chamber of Commerce and Industry 


 

-  Office support for German branch including provision of a letter box for German branch

 

-  Mail- & telephone service Mo-Fr. 8am – 5pm (except public holidays in the Federal State of Berlin, Germany

 

-  Support with incorporation of a legal entity in Germany

 

-  Dunning support 


 

-  Replenishment of consignment stocks at clinical sites 


 

-  Support with product recalls 


 

-  Customer Mailings (Marketing, customer information) 


 

-  Additional customer service on request

 


Rate per hour:                                                      € 89 


 

-  Hospital database with all  D/A/CH sites 


 

-  Barcoding system to manage stocks, order times and replenishment 


 

-  Sales reports by customer and product 


 

-  Management of LOT numbers 


 

-  Necessary data for an ISO certified recall procedure 


 

Database can be used worldwide, if needed