Agreement
Exhibit
10.1
Agreement
This
Agreement is made effective as of April, _____, 2005 by and between PC Products
Inc., (“PCPI”)
a
Nevada Corporation which is a wholly owned subsidiary of Com-Guard, Inc.
(“CGUD”)
and
26Zone, Inc., a California Corporation. CGUD is the Parent Company and as it
pertains to law, is a party to this Agreement.
Whereas
PCPI has
entered into a Production Agreement, a Sales and Marketing Agreement and a
Service Agreement with Wintergreen Systems (hereinafter: “Transaction
Agreements”)
for
the Sales, Production and Servicing of Computer Systems; (The Transaction
Agreements are attached to this contract and marked as Exhibit
A ,(”The
Transaction Agreements”),
And
whereas
26Zone
is a supplier of computer components and other computer equipment;
And
whereas the
parties have decided to work together in the areas of sourcing, financing and
purchasing of computer hardware & software and sales of Computer Systems
equipped with CGUD designed security products and technology.
It
is therefore agreed upon between the parties as follows:
| 1. |
PCPI
agrees to give 26Zone the exclusive right to perform sourcing and
purchasing of all the components and software required by
PCPI.
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| 2. |
In
addition, 26Zone will act as a consultant to PCPI in the areas of
sourcing, purchasing, sales and marketing of PC related products,
including Com-Guard products and
licensing.
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| 3. |
PCPI
will finance the purchase of said components and software by 26Zone
on
behalf of PCPI, and anticipates that it will continue to provide
the
financing for the purchase of said components and software as necessary
to
support the production of the Computer Systems for PCPI, as long
as
practicable.
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| 4. |
PCPI
will pay 26Zone for the components and/or software upon ordering
it from
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26Zone
and receipt of an invoice from 26Zone.
| 5. |
26Zone
will attempt to provide PCPI, within reason and so long as circumstances
allow, with pricing that is below regular distribution (wholesale)
prices.
|
| 6. |
26Zone
will deliver all said components purchased on behalf of PCPI to PCPI
or to
Wintergreen Systems, PCPI’s manufacturing contractor according to the
Transaction Agreements, within a reasonable time and according to
PCPI’s
Purchase Order signed and approved by
26Zone.
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| 7. |
26Zone
will supply one hundred percent (100%) of the components required
for the
build of PC’s under PCPI’s Purchase Orders, and under the Transaction
Agreements.
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| 8. |
As
consideration for 26Zone’s services and its role in negotiating and
facilitating the signing of the Transaction Agreements, and for the
services provided under this Agreement, 26Zone will be entitled to
receive
the following compensation:
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8.1. 15%
of Gross
Profit from all sales of PC products conducted by PCPI under the
Transaction Agreements; Payment
to 26Zone of said fee shall be made no later than ten (10) days
following
the payment to PCPI for the applicable Computer System.
8.2. The
amount of
1,000,000 shares of CGUD common stock to be earned according
to the “Earning
of Shares”
as
described in Exhibit B (Earning
of Shares).
PCPI
will effect an S-8 Registration Statement for the purpose of providing
registered S-8 shares to Xx. Xxxxx Xxxxx as a consultant to the company, in
accordance with the time line as described in Exhibit B.
| 8.3. |
Should
26Zone both
source the product and perfect the sale of the product, then 26Zone
will
be entitled to 50% of the Gross Profit, and PCPI will be entitled
to 50%
of the Gross Profit.
|
| 9. |
Warranty.
This agreement does not include any warranty, right of return or
repair
service for hardware or software supplied by 26Zone, except for the
warranty, services or returns provided by the manufacturer or the
relevant
distributor from which the product was
purchased.
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| 10. |
Disclaimer
of All Warranties:
26Zone makes no express or implied warranties with respect to the
Hardware
or Software supplied to PCPI, including but not limited to any warranty
with respect to the performance of any hardware or software used
in
conducting services, or any express or implied warranties concerning
the
results to be obtained from the services or the results of any
recommendation 26Zone may make, including without limitation, any
implied
warranties concerning the performance, merchantability, suitability,
non-infringement or fitness for a particular purpose of any of the
deliverables or of any system that may result from the implementation
of
any recommendation 26Zone may provide. Nothing in this agreement
or any
other written documentation or any oral communications with customer
may
alter the terms and conditions of this
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paragraph. In addition, 26Zone will not be responsible for loss of or damage
to
data or loss of use because of any hardware or software supplied.
| 11. |
Limitation
of Liability:
Under no circumstances will 26Zone or its subcontractors be liable
for any
of the following; 1) third party claims for damages; 2) special,
punitive,
indirect, incidental or consequential damages of any type, including
but
not limited to products, hardware or software, being unavailable
for use,
lost profits or savings or lost or corrupted data or software, or
for any
damages for personal injury, or death, whether direct, indirect or
otherwise, arising out of or in connection with this agreement or
the
services, or arising out of the results or operation of any system
resulting from implementation of any recommended plan or design,
even if
26Zone or its subcontractors have been advised of the possibility
of the
damage, and even if PCPI or the end-user asserts or establishes a
failure
of essential purpose of any limited remedy provided in this agreement.
Under no circumstances will 26Zone be liable to PCPI or its customers
for
any amount in excess of the fees actually received by 26Zone for
the
applicable computer components or software. This limitation of liability
applies to all types of legal theories, including contract, tort
(including negligence), professional liability, product liability,
warranty, or anything else. This limit also applies to any 26Zone
subcontractor. It is the maximum amount for which 26Zone and its
subcontractors are responsible.
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| 12. |
Proprietary
Rights.
PCPI undertakes and agrees to defend at PCPI’s own expense Actions or
proceedings brought against 26Zone, and any of 26Zone’s representatives,
agents, dealers or customers (each a “Person”) for actual or alleged
infringement of any existing United States copyright, industrial
design
right, trade secret, patent, or other proprietary rights related
to the
Proprietary Com-Guard software and/or Hardware products. PCPI further
agrees to pay and discharge any and all judgments or decrees which
may be
rendered in any such suit, action or proceeding against any Person.
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| 13. |
Confidential
Information.
Neither party shall disclose, provide or otherwise make available
any
confidential information concerning the products, operations, methods,
processes, data, specifications, or any other confidential, financial
or
business information which it learns from the other during the course
of
its performance of this Agreement. Any such information shall be
subject
to the same degree of security, protection and confidentiality as
the
receiving party uses to preserve information of a similar nature.
No
confidentiality obligations will apply to information which the recipient
can establish is in the public domain, is previously known to recipient
without an obligation of confidentiality, is independently developed,
or
is obtained from a third party that does not have an obligation to
keep
the information confidential. Provisions of this confidentiality
section
shall survive termination or expiration of this Agreement and continue
for
a period of five (5) years, as to all of information, as such information
remains confidential information.
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1
14. Force
Majeure.
Neither
PCPI nor 26Zone shall be liable to the other for any delay
in
or failure of performance of their respective obligations hereunder if such
performance
is rendered impossible or impracticable by
reason of fire, explosion, earthquake,
drought, embargo, war, riot, act of God or of public enemy, an act of
governmental
authority, agency or entity, or any other similar contingency, delay,
failure
or cause, beyond the
reasonable control of the party whose performance is affected,
irrespective of whether such contingency is specified herein or is presently
occurring or anticipated by either party. In the event either party is
prevented
from
fulfilling its obligations under this Agreement because of such a force
majeure as described herein, both 26Zone and PCPI shall make every effort
to
continue to maintain as much as possible the supplier-customer
relationship established
under this Agreement. However, if PCPI or 26Zone is unable to meet its
obligations hereunder because of the conditions described above, then this
Agreement
shall be extended by such time period
as such conditions exist. As an example,
if a condition of force majeure exists for 10 weeks, this Agreement shall
be
extended by ten weeks and all applicable dates in this Agreement shall be
extended
by ten weeks. No
provision of this Section shall be construed to excuse PCPI
from
payment of amounts owed to 26Zone under this Agreement.
15. Waiver.
The
provisions of this Agreement may be waived, altered, amended, or repealed
in whole or in part only upon the written consent of PCPI and 26Zone.
The
waiver by either party of any breach of this Agreement
shall not be deemed or
construed as a waiver of any other breach, whether prior, subsequent or
contemporaneous,
of this Agreement.
16. Severability.
Invalidation of any of the provisions contained herein, or the application
of such invalidation thereof to any person, by legislation, judgment or
court
order shall in no way affect any of the other provisions
hereof or the application
thereof to any other person, and the same shall remain in full force
and
effect, unless enforcement as so modified would be unreasonable or grossly
inequitable
under all the circumstances or would
frustrate the purposes
hereof.
17. Indemnification.
PCPI
shall indemnify and hold 26Zone harmless from and against
any and all claims, obligations, liabilities, damages, losses, expenses or
other
costs (including reasonable attorneys’ fees and
disbursements and the costs of
investigation) asserted against or suffered by 26Zone and resulting directly
or
indirectly
from any breach of any provision of this Agreement by PCPI or any negligent
or willful acts or
omissions of PCPI.
| 18. |
Assignment.
This Agreement is not assignable without the written consent of the
other
party.
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| 19. |
Entire
Agreement.
This Agreement and the terms and conditions referenced in
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any
purchase order issued by PCPI and/or invoice issued by 26Zone in connection
with
this Agreement (to the extent not inconsistent in whole or in part with this
Agreement) constitute the entire agreement and understanding between the parties
with respect to the subject matters herein and therein, and supersede and
replace any and all prior agreements and understandings, whether oral or
written, between them with respect to such matters. Both parties agree that
the
terms and conditions of any 26Zone or PCPI quotation, offer, acknowledgment
or
similar document, however designated, shall not apply.
| 20. |
Counterparts.
Section headings contained herein are for ease of reference only
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and shall not be given substantive effect. This Agreement may be signed in
one
or more counterparts, each to be effective as an original.
| 21. |
Notices.
Any notice required or permitted under this Agreement shall be sufficient
if given in writing and delivered personally or by overnight courier
service or if mailed, registered or certified mail, postage prepaid,
return receipt requested, to the address of such party first set
forth
above, or at such other address as is specified by a party by like
notice.
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| 22. |
Arbitration.
In
the event of a dispute arising under this Agreement, such dispute
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shall
be
resolved by binding arbitration through submission of the issue to a member
of
the American Arbitration Association who is chosen by mutual agreement of the
parties. If mutual agreement cannot be reached, then each party shall select
an
arbitrator, and those arbitrators shall select another arbitrator to act as
arbitrator for the dispute. Arbitration shall be held in a mutually agreed
upon
location; if no location shall be agreed upon then arbitration shall be in
the
venue where the wronging party resides. Expenses of the Arbitration shall be
paid as decided.
| 23. |
Term.
The initial term of this Agreement shall be five (5) years from the
signing
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of the Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by
their duly authorized representatives as of the date first set forth
above.
PC
Products, Inc. 26Zone,
Inc.
(“PCPI”)
By: By:
Name:
Xx.
Xxxxxx X. Xxxxxxxx
Name:
Xx.
Xxxxx Xxxxx
Title: Title:
2
Exhibit
A
(”The
Transaction Agreements”)
3
Exhibit
B
(Earning
of Shares)
May
18, 2005 - 250,000 shares
90
days later - 250,000 shares
180
days later - 250,000 shares
270
days later - 250,000 shares
4
