AGREEMENT
This agreement dated , 1999 is between Mind2Market, Inc., a Colorado
Corporation, having a place of business at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX
00000 referred to as M2M in this agreement and Western Innovations Inc., having
a place of business at 00000 Xxxx 00xx Xxx., Xxxxxx, Xxxxxxxx 00000, referred to
as WII in this agreement.
WITNESSETH
Whereas: M2M is sole owner of two products called Radar Beacon and
AeroLink; and
Whereas: M2M is desirous of a relationship with a manufacturing firm to
acquire or manufacture components, and to assemble components into the products,
and further to packaging and ship products to required destinations; and
Whereas: WII is a manufacturing firm with the abilities to acquire or
manufacture, assemble, package and deliver products and is desirous of
manufacturing the products Radar Beacon and AeroLink;
Now Therefore: In consideration of these premise and of the mutual promise
and agreements herein set forth, the parties hereto agree as follows:
1. TERM:
(a) The term of this agreement shall commence as of the date of the
first purchase order to WII and shall continue for an initial period of five (5)
years, and for successive periods of five (5) years thereafter only upon the
mutual written agreement of the parties.
(b) M2M shall have the right to terminate this Agreement on the
occurrence of any one or more of the following events:
(1a) the breach by WII of any other material term of this
Agreement, provided that WII fails to cure the same
within 30 days of written notice thereof by M2M.
(2a) the insolvency of WII.
(3a) the placement of the assets of WII in the hands of
trustee or receiver.
2. GRANT OF RIGHTS:
M2M hereby grants WII exclusive rights to produce, acquire, assemble,
and package the products. WII will be responsible for total quality control of
all components as specified by M2M. WII will be responsible for the assembly,
packaging and shipping of product to all M2M customers as specified by M2M.
3. M2M WARRANTIES AND INDEMNITIES:
(a) M2M hereby warrants and represents that it has the right and power
to grant the Rights herein described in item two (2) of this agreement and is
free to enter into this agreement with WII. Upon the execution of this agreement
M2M shall provide WII with existing documentation regarding its proprietorship
of and ability to grant the Rights as set forth herein. WII is hereby granted
the right to duplicate and use such documentation and materials for use in
acquiring components for the manufacturing of the products.
(b) M2M hereby warrants and represents that it has not assigned or in
any other way, sold, conveyed, transferred or encumbered all or any portion of
the Rights, with the respect to the products to any other person, firm or
corporation by any instrument or agreement now valid or outstanding.
(c) M2M hereby indemnifies and saves WII and its respective successors,
assigns and licensees harmless from and against all claims, damages, loss of
profits, losses, settlement, judgements, expenses and cost, including reasonable
attorney's fees which may be suffered, made, incurred or assumed by WII or its
successors, assigns or licensees by reason of any breach or alleged breach by
M2M of any agreement, warranty or representation made or entered into hereunder
by M2M.
4. WII WARRANTIES AND INDEMNITIES:
(a) WII hereby warrants and represents that it is free to enter into
this agreement.
(b) WII hereby warrants and represents that it will produce ordered
product within 45 days of receipt of all components that meet M2M
specifications.
(c) WII will, at all times, conduct all business required of it
hereunder, in a manner that will cause M2M to be in compliance with
all applicable International, Federal, State and local laws and
regulations.
5. TERRITORY:
The rights granted by M2M to WII shall be for all of Product markets.
6. MANUFACTURING RESPONSIBILITIES:
(a) WII shall have the sole and complete authority and responsibility
for all procuring, manufacturing, assembly, packaging and shipping
of the products except as listed in (b) & (c) below.
(b) M2M will be responsible to approve written components
specifications and quality control procedures before manufacturing
of the components and products,
(c) M2M will be responsible to approve major vendors (i.e. balloons,
cylinders, valve body, connector parts, tether, casing, adhesives
& tape) to supply components to WII. (e) M2M commits to minimize
delivery commitments in high growth periods (greater than 120%
per month) in order reduce production peaks and valleys.
7. TAXES:
Each party shall be responsible for all of its own Federal, State, and
local taxes of any kind or nature whatsoever.
8. PRICING:
The pricing of the Radar Beacon and AeroLink units shall be determined
under Appendix A of this agreement. The price includes placing the units in
provided packaging and having the units ready to ship. The price is F.O.B. WII
dock. Order quantities for components, greater than required to meet existing
orders, will be at WII's discretion.
9. MISCELLANEOUS:
(a) The parties hereto do hereby agree that they are each dealing with
the other under this agreement as independent parties and that this agreement
does not create, nor is it intended in any way to create a joint venture or
partnership between the parties hereto.
(b) This agreement may not be assigned by either party without the
prior written consent of the other party or one or more of the principals.
(c) Both parties agree to hold all information received from the other
party hereto in confidence and all contracts, names, names of clients will not
be used by the other party in any other type of endeavor or that party will be
held liable for damages.
(d) This agreement shall be governed by and interpreted in accordance
with the laws of the State of Colorado as it applies to contracts entered into
and performed whole therein.
(e) All disputes under this agreement shall be settled in the City of
Denver, Colorado by a panel of three (3) arbitrators, (one picked by each party
and the third picked by the two (2) selected arbitrators) under the rules
established by the American Arbitrators Association. The findings of the
arbitrators will be final and conclusive and may be filed with any court having
competent jurisdiction.
(f) In the event any provisions of this agreement is deemed to be in
conflict with any law of any relevant jurisdiction, the agreement shall be
interpreted to the extent possible without such provision and the balance of the
agreement will not fail on account thereof.
(g) Any failure or omission by either party to insist upon compliance
by the other or any of the terms of this agreement shall not constitute a waiver
or for any later enforcement of the term or terms.
(h) Any notice required by or provided pursuant to this agreement shall
be given in writing by means of facsimile, the U.S. Postal Service or any
professional delivery service that requires a signed written receipt confirming
delivery of the envelope or package containing the notice. The effective date of
the notice shall be the date it is facsimiled or delivered to the party for
which it is intended. If the notice is for WII, it shall be delivered to the
following address or to such other addresses as WII may designate by notice:
Name Western Innovations
Address 00000 X. 00xx Xxx.
City Aurora
State Colorado Zip 80011
Attn: Xxxxx Xxxxxxxx
Phone 000-000-0000
Fax 000-000-0000
If the notice is to M2M it shall be delivered to the following address
or to such other addresses that M2M shall designate by notice:
Name Mind2Market, Inc.
Address 0000 Xxxxxxx Xxxxx
Xxxx Xxxxxxxxxx
Xxxxx Colorado Zip 80020
Attn: Xxxxxx Xxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
(i) This agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same agreement.
(j) This agreement sets forth the entire agreement of the parties. All
prior verbal or written agreements, whether expressed or implied, being merged
herein.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date set forth below to be effective as provided in the first sentence of the
Agreement.
Date: ----------------
---------------------------
Xxxxx Xxxxxxxx, President
Western Innovations
Date: ----------------
---------------------------
Xxxxxx Xxxxxx, President
Mind2Market, Inc.
Appendix A
M2M and WII hereby warrant and agree as follows:
1) WII grants an initial credit of $1,000,000 to M2M for the express
purpose of Radar Beacon and AeroLink orders secured by M2M.
2) With each order received by WII from M2M, a 50% deposit on the total
Cost of Goods Sold is required.
3) WII will maintain one (1) Board of Director seat on the M2M Board of
Directors for as long as this agreement remains in place.
4) M2M will hold WII harmless on any or all components and supplies that
meets M2M specifications (specifications in place when ordered) but not
used immediately for reasons determined by M2M. Balance of costs (cost
of item less deposit plus processing and return costs) will be due WII
at same time as WII costs are due vendor.
5) If M2M sells or assigns the Radar Beacon or AeroLink product line to
another entity, WII will receive three dollars ($3.00) per unit
produced by the purchasing entity for the remainder of the contract
between M2M and WII.
The price to M2M for the Radar Beacon product will be as follows:
1) Pricing formula is Cost of Goods Sold + Labor + Overhead/Adm. + Profit.
Labor and Overhead/Adm. cost are as follows and can be amended by
mutual consent.
Pricing for Radar Beacon
--------------------------------------------------------------------------------------------------------------------
Units Less than 2000 2000 to 9999 10000 to 19999 20000 or more
Ordered /Month
Cost of Goods Sold
Labor 4.00 4.00 4.00 4.00
Adm. 4.00 3.50 3.00
& Overhead 2.50
Subtotal
Profit (15%)
Total Price
