Agreement
This Agreement (the "Agreement") is made this 2nd day of September,
2010 (the "Effective Date") By and between Ex Oriente Lux AG, a German
stock corporation, having its business address at Xxxxxxxxxxxx 00, X-
00000 Xxxxxxxxxx, Xxxxxxx Xxxxxxxx of Germany, registered with the
commercial register of the local court of Stuttgart under HR? 725521
(hereinafter referred to as the "Licensor" and/or "EOL")
And
PMX Communities, Inc., a fully reporting public company registered with
the Securities and Exchange Commission and Nevada corporation
registered with the secretary of state of Nevada (Nevada Business ID #
NV20041698167 and Nevada Entity # C35341-2004) with Florida business
address PMX COMMUNITIES, Inc., Research & Development Park, 0000 XXX
Xxxx. Xxxxx 000, Xxxx Xxxxx, XX 00000, Xxxxxx Xxxxxx of America
(hereinafter referred to as the "Licensee" and/or "PMXG").
The aforementioned parties are hereinafter collectively referred to as
the "Parties" and individually as a "Party".
Capitalized terms shall have the meaning ascribed to them in this
Agreement.
WITNESSETH:
Whereas, EOL is a subsidiary of Xxxxxxxx C-B-T GmbH, a German
limited liability company. EOL's business plan includes the
development of business activities in the field of precious metals via
online shops, broker pools and the development of the GOLD to go(r)
business model; and
Whereas, EOL has developed the GOLD to go(r) vending machine
(hereinafter referred to as the "Machine") for the retail sale of gold
bullion and related products. EOL presently has Machines operating in
Germany and the United Arab Emirates. EOL desires to expand the use of
its Machines throughout the world through the sale of franchises,
licenses and other commercial arrangements; and
Whereas, PMXG's business plan includes the development of certain
opportunities within the gold mining, processing and wholesale and
retail gold sale industries; and
Whereas, PMXG desires to promote the Machines and the Gold to go
business model for the purpose of developing proposals for licensing
and franchise agreements for the GOLD to go(r) vending machine (for PMXG
and other entities and investor groups that they will introduce to
EOL); and
Whereas, EOL and PMXG wish to enter into an agreement to develop
these proposals and for PMXG to conduct test marketing of the Machine
beginning with the State of Florida which, ultimately, may lead to an
initial GOLD to go(r) Licensing Agreement for PMXG within the State of
Florida providing certain performance milestones are achieved as set
forth herein.
NOW THEREFORE, in consideration of the foregoing, and Ten and
no/100ths ($10.00) Dollars in hand paid by each party hereto unto the
other, and other good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby jointly and severally
acknowledged, and the covenants, promises, representations, guarantees
and the agreements herein contained;
IT IS MUTUALLY AGREED, by and between the Parties hereto as follows:
1. Recitals. The Parties hereto acknowledge and agree that the
foregoing recitals are true, correct, accurate, in proper form and fully
binding upon them in all respects, which recitals in their entirety are
hereby incorporated in this Agreement in haec verba.
2. Initial Agency Relationship. PMXG is to become a non-exclusive
agent to assist EOL to develop select test markets within the State of
Florida and elsewhere in the United States. This does not create any
obligation on EOL's behalf other than if PMXG presents any licensing,
franchising or joint venture proposals to EOL involving entities other
than PMXG that are ultimately accepted and consummated by EOL, then EOL
agrees to pay PMXG a concession or referral fee to be negotiated on a
case by case basis.
EOL agrees not to circumvent PMXG in the negotiation or consummation
of any transaction with a party introduced to EOL by PMXG without the
participation and/or consent of PMXG under the condition that this
party is listed on a contact list ("Contact List PMXG") PMXG will
present to EOL after signing of this agreement which shall be
supplemented from time to time through the conclusion of the test
period. The Contact List PMXG is restricted to 15 (fifteen) parties
PMXG intends to start negotiations with. Besides, a party is
"introduced" to EOL in the meaning of the preceding sentence 1 if EOL
received not just its contact details but also a serious proposal for
entering into a licensing, franchising, joint venture or similar
agreement. However, any negotiation or consummation of any transaction
with a party introduced to EOL by PMXG shall not be deemed as a
circumvention of PMXG if (i) this negotiation or consummation takes
place more than 12 months after the third party was introduced to EOL
by PMXG and, within the twelve month period, no serious opportunity for
negotiation with the introduced party has evolved, or (ii) this
negotiation or consummation takes place more than 12 months after the
third party was introduced to EOL by PMXG and, within the twelve month
period, PMXG and/or EOL have not made any significant progress towards
an agreement with regard to the parties introduced to EOL by PMXG. The
Parties agree that only such third parties shall be listed on the
Contact List PMXG which are not named on the blacklist which is
attached to this agreement as Annex 2. The blacklist may be amended
and supplemented by EOL from time to time over the course of this
agreement.
3. Initial Deposit. PMXG will pay to EOL a non-refundable deposit
(hereinafter referred to as the "Deposit") of Ten Thousand and 00/100
Euros (EU$10,000.00) with the understanding that this is to be applied
towards the initially targeted Florida test program or another
program that EOL and PMXG may mutually agree upon. In the event that no
business is consummated between the Parties then the deposit is non-
refundable to PMXG.
4. Florida Test Marketing Agreement. PMXG has until October 15 to
put together a proposal that EOL finds acceptable for the Florida
agreement, and forward the balance of the agreed deposit for a minimum
of 1 (one) ATM (but most likely 2 (two)) for the initial test
marketing. While final details still need to be negotiated and mutually
agreed to, the anticipated agreement includes the following potential
items:
Deposit. EOL requires a deposit of Fifty Thousand and 00/100 Euros
(EU$50,000.00) for each Machine. PMXG will be credited the Initial
Deposit detailed in paragraph 3 above towards its acquisition of its
first Machine. If additional machines are ordered by PMXG, then the
parties shall mutually agree on the tendering of additional deposits.
Rental Period. The rental period is three (3) months from arrival in
the US customs.
Rent. There is no charge for rent of the machines during the three (3)
months test period.
Division of Profits. EOL and PMXG shall equally share in the gross
profits generated by the Machines. Gross profits are defined as the
profits received from the sale of the gold after deducting basic
expenses such as rental location fees and administrative expenses.
Unless otherwise agreed by the parties, PMXG will pay the costs of
initial advertising and promotion to publicize this test contract and
generate interest in retail sales and licensing/franchising
opportunities. EOL has the right to have PMXG's books and records
regarding the Gold ATM business (including but not limited to wholesale
receipts from gold suppliers and other receipts concerning the
operational expenses regarding the Machines) audited by a public
certified accountant or any other professional advisors which is bound
by professional confidentiality duties. The audit shall have the sole
objective to verify the correctness of the calculation of the division
of profits and the accurateness of EOL's profit share. In case an audit
shows any incorrectness of the calculation and the division of profits,
PMXG shall bear the costs of the audit.
Shipping Costs. PMXG will pay the shipping costs to transport the
machine(s).
Insurance. Insurance for the machine will be paid by EOL.
Mutual Agreement of Vending Products & Pricing and location of
Machines. The Parties shall mutually agree on the product line and
pricing as well as on the locations the Machines will be placed at
during the test period. Any change of the location requires EOL's prior
approval. It is intended that the product line will closely resemble
the product line offered by EOL in its current marketing efforts but
with changes necessary to accommodate United States consumer demand
(Gold Eagles, etc.). PMXG will buy the products for the Machine from a
United States supplier.
Hardware and Software. EOL will provide PMXG with necessary operating
hardware and software including the RFID-coded precious product boxes
and an additional set of CIT components (10 shafts, coin and note
boxes, and a xxxx xxxxxxx for each machine).
Technical Support. EOL is in charge of the software monitoring and
support/modification of the GUI to PMXG product portfolio. EOL will
provide PMXG with an emergency technical support contact.
Day to Day Operational Support. PMXG is in charge of organizing the
packing of the gold bars/coins into the respective boxes and providing
day to day operational support for the operation of the machine. During
the test period PMXG and/or PMXG's gold supplier will get access to the
Machine only with EOL staff being present for supervision.
Machine Design and Aesthetics. The Machine design will be similar to
the model in operation at the Emirates Palace in that it will feature a
Design/Logo for PMXG to be mutually approved by both parties; in the
event that the option is not exercised for the Florida License then
PMXG will bear the cost of returning the unit to a neutral appearance.
Exclusivity. PMXG has exclusivity rights for Florida during the 3
month test period.
Termination of Rental Agreement. After the rental period PMXG will
send the machine(s) back to EOL unless they exercise an option (yet to
be negotiated) for a Florida license, Southeast Florida Regional
license or Palm Beach County license. Such license may be as a
Franchisee, Licensee, Area Developer or other relationship to be
negotiated subject to mutual consent.
Return of Deposit(s). In the event that no further relationship is
consummated after the termination of the Rental Period, EOL will return
the deposit(s) to PMXG within thirty (30) days after the receipt of the
machines in Germany Customs (less the Ten Thousand Euros (EU$10,000.00)
non-refundable deposit, and less any charges for loss or damage to the
machines/components beyond normal wear-and-tear, costs of returning the
unit to a neutral appearance or deductions for final Divisions of
Profits as outlined above).
Modification of Terms. The parties realize that the above details may
change by mutual consent, and that certain details have yet to be
determined concerning a definitive limited licensing option at the
conclusion of the test marketing period and/or buyout clauses as well
as a solution that addresses both EOL's and PMXG's (and PMXG's Gold
Products Supplier's) concerns regarding unsupervised access to the
machine by either party that is economically feasible for both parties
yet will maintain both EOL's confidential proprietary product integrity
and PMXG's security of the bullion products. It is anticipated that
PMXG will send consultants, non-affiliated investors and/or associated
persons to Germany to meet with EOL to conclude an agreement and
familiarize themselves with the GOLD to go(r) vending machine and
business model to facilitate this venture.
5. Public Relations and Advertising. PMXG intends to structure an
appropriate news and public relations campaign to promote the machine's
test marketing in Florida and generate interest in the Gold ATM concept
with the intent of developing proposals for licensing and/or franchise
agreements. EOL hereby permits PMXG to use the likenesses, images and
factual descriptions concerning the GOLD to go(r) ATM machine and
business model in promotional brochures, on PMXG's website and other
electronic and print advertising medium. EOL reserves the right to
censor any representation that it deems to be factually incorrect.
6. Headings. The headings contained herein are for convenience and
reference only and are not intended to define or limit the scope of any
provisions of this Agreement.
7. Notice. All notices required under the terms and provisions
hereof shall be in writing, and any such notice shall become effective
when delivered by overnight courier or messenger, is in the form of a
telex or telecopy, when received.
8. Litigation. In connection with any litigation (including all
appeals therefrom) arising out of this Agreement, the prevailing party
shall be entitled to recover all costs incurred, including reasonable
attorneys' fees and interest.
9. Invalidity. The invalidity or unenforceability of any particular
provision or part of a provision hereof, shall not affect the other
provisions or parts hereof, and the Agreement shall be construed in all
respects as if such invalid or unenforceable provisions or part thereof
were omitted.
10. Entire Agreement. This is the entire Agreement between the
Parties covering everything agreed upon or understood in the transaction.
There are no promises, conditions, representations, warranties,
guarantees, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereby were in effect between
the Parties other than as herein set forth. Any Agreement hereafter made
shall be ineffective to change, modify, discharge or effect an
abandonment of this Agreement, in whole or in part, unless such Agreement
is in writing and signed by the party against whom enforcement of the
change, modification, discharge or abandonment is sought.
Waiver by any party hereto of a breach hereof shall not be deemed a
waiver of any subsequent similar breach or a waiver of any term and
condition hereof. Waiver of any breach of this Agreement shall not
excuse the faithful performance of any other term and condition of this
Agreement. Either party has a right to waive one or more breaches or
failure of conditions of settlement and to consummate this transaction as
if said breach had not occurred.
11. Governing Law. This Agreement shall be construed and
interpreted pursuant to the laws of Germany. Venue of any action arising
out of this Agreement or any of the agreements contemplated hereby shall
be in Frankfurt am Main, Federal Republic of Germany.
12. Further Assurances. The Parties hereby agree to cooperate,
execute and deliver any and all documents reasonably deemed necessary to
effectuate the intent and the terms and conditions of this Agreement.
Each party reciprocally agrees to promptly and duly execute and deliver
to the other such further documents and assurances and take such further
action as may from time to time be reasonably requested in order to more
effectively carry out the intent and purpose of this Agreement and to
establish and protect the rights and remedies created or intended to be
created in favor of the other party hereunder.
13. Counterpart Execution. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
Facsimile signatures shall constitute original signatures.
14. Construction. Each Party has reviewed and participated in the
formation of this Agreement and, accordingly, any rule or construction to
the effect that ambiguities be resolved against the drafting party shall
not be employed in the interpretation of this Agreement.
15. Time. Time is of the absolute essence with respect to the
Parties performance this Agreement.
16. Successor Liability. The benefits and obligations of this
Agreement shall inure to and bind the respective heirs, successors,
personal representatives and permitted assigns of the Parties hereto.
Whenever used, the singular shall include the plural and the plural the
singular and the use of any gender shall include all genders.
17. Assignment. PMXG may assign its rights hereunder to a wholly
owned subsidiary or affiliate to be formed by PMXG.
IN WITNESS WHEREOF, the Parties hereto have executed and delivered this
Agreement this 2nd day of September, 2010.
Signed, sealed and delivered
in the presence of: PMX Communities, Inc.
____________________________
____________________________ By:/s/Xxxxxxx X. Xxxxx
Xxxxxxx
Xxxxx, President
Signed, sealed and delivered Ex Oriente Lux AG, a
German stock corporation
in the presence of:
____________________________
____________________________ By:/s/Xxxxxx Xxxxxxxx
(Print Name and Title) Xxxxxx
Xxxxxxxx, CEO
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