EXHIBIT 10.12
DISTRIBUTION AGREEMENT
This agreement is made as of March 10, 2005 between SeaLife Marine Products,
Inc., (Company) a wholly owned subsidiary of SeaLife Corporation, 0000 Xxxxxxx
Xxxxxx, Xxxxx 000 Xxxxxx Xxxx, Xxxxxxxxxx 00000xxx Current, Inc., 00 Xxxxx
Xxxxxx, Xxxx Xxxxx, XX 00000 (Distributor).
1. KEY TERMS.
(a) Territory. "Territory" means Virginia, Maryland, Delaware, New
Jersey, New York (South of Latitude 42), Connecticut, Rhode Island,
Massachusetts, New Hampshire and Maine.
(b) Class of Trade. "Class of Trade" means sub-distributors
(boats, barges and marine vessels only), shipyards, boatyards and marine
dealers. This does not include retail, internet, non-marine vessel vertical
markets and catalog categories.
There may be instances from time to time where a potential customer, especially
a national account, could be a house account or a Rep account. This situation
will be evaluated on a case by case basis and the final decision will be made by
the Company President or Division President
(c) Products. "Products" means all products that the Company may
elect in its discretion to distribute in the Territory. See exhibit "A" for
product listing and distributor pricing.
2. APPOINTMENT. The Company appoints Current, Inc. as the Company's
exclusive distributor for sales of Products to the Class of Trade to be
delivered in the Territory as listed in items 1a, 1b, and 1c.
3. OBLIGATIONS OF DISTRIBUTOR.
(a) MARKETING EFFORTS. Distributor will use its best efforts to
maximize sales of Products in the Territory to the Class of Trade in the
Territory and will: (1) retain agents and representatives adequate to
effectively promote and sell the Products; (2) make appropriate contacts and
related efforts to sell Products to the Class of Trade; (3) arrange sales
meetings between the Company and Distributor's major accounts for presentations
of Products and review of topical issues affecting the trade industry, as
reasonably requested by Company; (4) participate at key trade shows in the
Territory; (5) pursue leads, if any, furnished by the Company; and (6) provide
monthly reports to the company covering sales, sales prospects, past and
upcoming promotional efforts and such other matters as are reasonably requested
by the Company. Distributor shall perform its duties in a professional manner
and in accordance with the highest industry standards.
(b) NO AUTHORITY. Distributor shall not make any representation or
warranty on behalf of the Company, or in any manner assume or create any
obligation or responsibility, express or implied, on behalf of, or in the name
of, the Company or act for or bind the Company in any respect (it being
understood that any representation, warranty or obligation may only be created
by the Company). No advertising, publicity, promotional or other materials in
any medium (nor any the Company's service marks, trademarks or trade names) may
be used by Distributor without the Company's prior written approval and then
only in accordance with the Company's instructions.
(c) OTHER ACTIVITIES. Distributor shall promptly notify the
Company in writing if Distributor desires to distribute or sell products that
are competitive with the Products and must have approval from the Company prior
to such sales.
4. OBLIGATIONS OF THE COMPANY. The Company shall inform and instruct
Distributor as to the Products and provide guidance and promotion of the
Products, as the Company deems appropriate. The Company shall supply materials
required, in the sole judgment of the Company, for the proper promotion and
handling of sales and instructions for use of such materials.
If at the end of the first 12 month period there is an excess of inventory and
both parties agree that it is excess, the distributor may return the excess
amount to the company.
5. SALES PERFORMANCE REQUIREMENTS AND PAYMENT TERMS
(a) Minimum Sales Requirement
Initial order: March 1, 2005 - 250 gallons; April 15, 2005 -
250 gallons
First Year TBD
Second Year TBD
(b) Payment Terms
Initial Order: 50% Upon execution of this agreement; 50% Upon
delivery.
Following orders: 30 day terms pending credit approval
(c) Sales incentive rebate program
3000 gallons the first year, 2% rebate paid out at year end
5000 gallons the first year, 4% rebate paid out at year end
(d) From March 15, 2005 through September 2005, SeaLife will
commit to advertising that both parties will agree upon and is
estimated at approximately $8,000.
6. ORDERS AND PRICING.
(a) ORDERS. Distributor shall promptly transmit to the Company, in
writing, all orders for Products on order forms approved by the Company. All
orders are subject
to acceptance or rejection by the Company, which reserves the
right to reject any order or part thereof (or cancel after acceptance), for any
other reason, in its sole discretion.
(b) PRICING AND TERMS. The Company shall establish all prices and
terms of sale for the Products. Distributor shall not deviate from the Company
pricing or terms of sale, including terms of delivery, without the prior written
approval of the Company. The Company reserves the rights to change and/or modify
pricing and terms, as it deems necessary, upon prior written notice to
Distributor. All contracts with accounts shall solely be between such accounts
and Distributor and the Company shall have no rights or obligations under such
contracts.
Pricing is guaranteed for any 6 month period.
7. PROPRIETARY RIGHTS:
(a) OWNERSHIP. The Company owns all Products and materials and all
intellectual property rights related to or used in connection therewith (the
"Rights"). Distributors shall acquire no interest in the Rights or in any
goodwill or relationships with customers or prospective customers. Distributor
shall not at any time, during or after the Term, contest, or aid any other
person in contesting, or do anything which otherwise impairs the Company's
interests in the Rights.
(b) NON-USE AND NON-DISCLOSURE. Distributor shall treat all
information regarding the Company or its customers or vendors, or the sale,
manufacture or distribution of the Products, including actual and prospective
customer and vendor names, lists and information, the methods by which sales of
the Products are conducted, any method by which customers, products or supplies
of the Product are obtained, business and marketing plans and financial
information and all other information that might by its nature be viewed as
trade secret, proprietary or confidential (collectively, "Confidential
Information"), as the Company's confidential and proprietary information and
shall not, without the Company's prior written consent, at any time during or
after the Term, directly or indirectly (a) use any Confidential Information for
its own account or for the benefit of any third party, or (b) disclose, make
accessible or furnish any Confidential Information or intellectual property
rights therein to any third party or (c) or permit the occurrence of any of the
foregoing.
8. TERM. The term of this Agreement (the "Term") commences on the
Effective Date and shall continue for a period of 2 years thereafter, unless
earlier terminated as provided below. In addition, unless either party provides
written termination at least thirty (30) days before the end of such 2 year
period, the Term shall continue until terminated by either party on thirty (30)
days prior written notice to the other party. The Company may also terminate
this Agreement at its sole discretion immediately for (a) material breach or
failure of performance by Distributor as outlined in Section 5 (Sales
performance and Payment terms) or (b) any acts of moral turpitude by
Representative or other acts which might injure the reputation of the Company.
In addition, either party shall have the right to terminate this Agreement and
end the Term at any time, with or without cause, upon thirty (30) days advance
written notice to the other party. Upon
termination by either party, the Distributor will return all inventories,
samples, collateral marketing materials and other designated Company property in
the distributor's possession and pay all outstanding receivables to the Company.
9. MISCELLANEOUS.
(a) RIGHT TO CONTACT ACCOUNTS. Nothing herein will prohibit any
contact or communications between the Company and any account. In addition, in
the event that Distributor is unable to solicit, contact or otherwise sell
Products to any account, the Company may solicit, contact and assist the
Distributor in selling Products to such account.
(b) ENTIRE AGREEMENT. This Agreement contains the parties' entire
agreement regarding its subject matter and supercedes all prior agreements,
understandings and negotiations regarding that subject matter. This Agreement
may not be changed, modified, amended or supplemented except by a written
instrument signed by both parties. This Agreement shall control over additional
or different terms of any order, confirmation, invoice or similar document, even
if accepted in writing by both parties; waivers and amendments shall be
effective only if made by non-pre-printed agreements clearly understood by both
parties to be an amendment or waiver of this Agreement and its terms.
(c) ASSIGNABILITY. Distributor may not assign this Agreement
without prior written consent of the Company. The Company may assign this
Agreement to any entity that acquires substantially all of its assets or
business and to any of its affiliates.
(d) SEVERABILITY. If any provision of this Agreement is held
illegal or unenforceable, that provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
(e) ARBITRATION. The parties hereby agree that all controversies,
claims and matters of difference shall be resolved by binding arbitration before
JAMS/Endispute (the "JAMS") located in Los Angeles, California according to the
rules and practices of the JAMS from time-to-time in force; PROVIDED HOWEVER
that the parties hereto reserve their rights to seek and obtain injunctive or
other equitable relief from a court of competent jurisdiction, without waiving
the right to compel such arbitration pursuant to this section.
(f) NOTICES; REPORTS. All notices, consents, approvals and reports
required by this Agreement shall be in writing, sent by certified or registered
mail, postage prepaid, or by facsimile or email (if confirmed by certified or
registered mail) to the parties at the addresses first set forth above or such
other addresses as be designated in writing by the respective parties in
accordance with these notice requirements. Notice shall be deemed effective on
the date of mailing (or the date of facsimile or email if confirmed by certified
or registered mail sent within one day thereafter).
(g) RELATIONSHIP. Distributor is an independent business entity in
the performance of this Agreement, is solely responsible for its employees and
agents and
labor costs and expenses arising in connection therewith and is responsible for,
and will indemnify the Company and its parent company, SeaLife Corporation from,
all claims, liabilities, damages, debts, settlements, costs, attorneys' fees,
expenses and liabilities of any type whatsoever that may arise on account of the
activities of Distributor, its employees or agents (including providing
unauthorized representations or warranties, failing to effectively disclaim
warranties and liabilities of the Company to its customers or breaching any
term, representation or warranty of this Agreement, and all claims made by any
entity on account of an alleged violation by Distributor of any law, regulation
code or other legal requirement). The Company is not responsible for the actual
performance of this Agreement by Distributor, nor with Distributor's employment
of other persons or incurring of other expenses. Except as expressly provided
herein, the Company shall have no right to exercise control whatsoever over the
activities or operations of Distributor.
(h) WAIVERS. The waiver by either party of a breach of any
provisions contained herein shall be in writing and shall in no way be construed
as a waiver of any succeeding breach of such provision or the waiver of the
provision itself.
(i) APPLICABLE LAW; EXCLUSIVE FORUM. This Agreement shall be
governed by and construed in accordance with the laws of the State of California
without regard to its conflicts of laws provisions. The exclusive jurisdiction
and venue of any action with respect to this Agreement and all transactions
related to its execution, performance and interpretation shall be the Superior
Court of California for Los Angeles County or the U.S. District Court for the
Central District of California and each party hereto submits itself to the
exclusive jurisdiction and venue of such courts for the purpose of any such
action. The prevailing party in any such legal action shall be entitled to
reasonable costs and attorneys' fees, including upon any appeal thereof.
(j) CAPTIONS. Paragraph captions are inserted for convenience only
and in no way are to be construed to define, limit or affect the construction or
interpretation hereof.
(k) INJUNCTIVE RELIEF. The parties acknowledge and agree that (a)
the extent of damages to the Company in the event of a breach by Distributor of
any obligation hereunder, including its obligations under Section 7, may be
impossible to ascertain and (b) the Company will have no adequate remedy at law
to compensate it in the event of breach of such obligations; consequently,
Distributor agrees that if it breaches any obligation hereunder, in addition to
any other rights and remedies available, the Company shall be entitled to
enforce all such obligations by injunctive or other equitable relief ordered by
any court of competent jurisdiction in accordance with the provisions of
Paragraph 8(h) herein, all without the requirement of any bond or other surety.
(l) COUNTERPART. This Agreement may be executed in one or more
counterparts, which shall together constitute the entire Agreements of the
parties.
(m) SURVIVAL. The provisions of Section 7 and of each other
provision that by its nature gives rise to obligations that should survive
termination shall survive the termination or expiration of this Agreement for
any reason whatsoever.
(n) NO WARRANTIES. Distributor acknowledges that the Company makes
no representation or warranty to Distributor with respect to the Products, and
makes only such representations and warranties to accounts as may be expressly
provided in any written accepted terms of any order. Without limiting the
foregoing, THE COMPANY DOES NOT WARRANT TO DISTRIBUTOR THE MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCTS OR THE PERFORMANCE OR
NONINFRINGEMENT THEREOF, DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PRODUCTS, SERVICE OR ANYTHING ELSE AND DOES NOT MAKE ANY WARRANTY
TO ACCOUNTS EXCEPT AS MAY BE SET FORTH IN THE WRITTEN TERMS OF ANY ORDER WITH AN
ACCOUNT. THE COMPANY HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATION OR
WARRANTY ON ITS BEHALF.
(o) REMEDIES. Distributor's sole and exclusive remedy for any
breach of this Agreement by Proterra shall be to collect any monies that may be
due and payable under the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the day and year first written above.
SeaLife Marine Products, Inc Current, Inc.
By: /s/ Barre Rorabaugh By: /s/ Xxxxx Xxxxx
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Barre Rorabaugh Xxxxx Xxxxx
Title: PRESIDENT Title: PRESIDENT
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Date: Date:
EXHIBIT A
LIST OF PRODUCTS
SeaLife 1000 Anti-Foul Paint
SeaLife 1000 XP Anti-Foul Paint
