Exhibit 10.46
MASTER DISTRIBUTOR AGREEMENT
THIS MASTER DISTRIBUTOR AGREEMENT (this "Agreement") between ATM
SERVICES, LTD., a Delaware corporation ("ATM"), and Korean Ginseng Products
Company, Ltd., a Korean Company ("Distributor").
WHEREAS, ATM is engaged in the business of industry specific
redistribution and re-marketing of surplus inventory and assets, new product
marketing and business products and services using an e-commerce platform; and
WHEREAS, Distributor desires to become, and ATM desires Distributor to
become, ATM's exclusive Master Distributor within Korea to sell ATM's services
in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, it is agreed as follows:
1) EXCLUSIVE MASTER DISTRIBUTOR APPOINTMENT. ATM hereby appoints KGP, and
KGP hereby accepts such appointment as its authorized, exclusive
independent Master Distributor to sell and promote e-commerce and
internet services provided by ATM in Korea (the "Territory"), including
but not limited to services related to Xxxxx.XXXxxxxxx.xxx (the "ATM
System"). All of Korea //WR// //KHL//
2) MASTER DISTRIBUTOR FEE. The Master Distributor fee for Korea will be
$1,000,000 //KHL// which can be funded in dollars, local currency or
products (which products will be subject to acceptance by ATM).
3) BEST EFFORTS. Distributor will use its best efforts and devote such
time, energy and skill on a regular and consistent basis as is
necessary to sell and promote the ATM System within the Territory and
to sign Korean companies as members of the ATM System.
4) REVENUE SHARING. Distributor will share in the revenues derived from
the annual membership fees and transaction fees earned from the
products of the members a signed ("Distributor's Members") that are
marketed and sold by the ATM System, in accordance with Schedule A
attached to this Agreement. Distributor will continue to receive these
revenues with respect to the Distributor Members for as long as such
Distributor Members pay to renew their memberships and transaction fees
are earned from product sales of products listed by such distributor on
the ATM System.
5) ANCILLARY SERVICES. In addition to the foregoing, Distributor will
assist ATM and shall perform any and all services required or requested
in connection with ATM's business, including, but not limited to, such
services of an advisory nature as may be requested from time to time by
ATM. Distributor shall periodically, or at any time upon ATM's request,
submit appropriate documentation of any and all sales and promotional
efforts performed and to be performed for ATM pursuant to this
Agreement.
6) Timing of Payments. The sharing of revenues and time periods described
in Section 3 and Schedule A will commence as of the date of the first
Distributor member; provided, however that no payment will be due and
payable to Distributor until 30 days from receipt of,
//KHL// //WR//
(a) if due to Distributor as a result of a cash payment to ATM for
membership fees from any Distributor Member, the total cash due
therefore;
(b) if due to Distributor as a result of a payment in goods to ATM for
membership fees from any Distributor Member, the cash from sale
equal to the total amount due therefore; or
(c) if due to Distributor as a result of a sale of goods listed on the
ATM System, the cash from sale thereof.
7) PAYMENTS ON NET AMOUNTS. Payments due to Distributor will be paid on
fees for services rendered by ATM and will not include freight,
supplies, and other charges incidental to the performance of said
services.
8) TERMINATION. If during the first 12 (//WR// //KHL//) months after the
date of this Agreement, Distributor has not signed at least 10 (//WR//
//KHL//) Members that have committed dollars or products in amounts or
quality both to be acceptable to ATM and or in accordance with the
Schedule A attached hereto then ATM may elect to cancel this Agreement.
Distributor will continue to share in revenues from Distributor Members
as described in this Agreement even after this Agreement is terminated
for three years after such termination.
9) NON-COMPETE AND NON-DISCLOSURE. During the term of this Agreement and
for 4 year(s) after its termination, Distributor, or any agents or
Distributors under Distributor's control, shall not compete with ATM,
directly or indirectly, for Distributor or on behalf of any other
person, firm, partnership, corporation or other entity in the sale or
promotion of services the same as or similar to ATM's services within
the Territory. Under no circumstances and at no time shall Distributor
disclose to any person any of the secrets, methods or systems used by
ATM in its business. All customer lists, brochures, reports, and other
such information of any nature made available to Distributor by virtue
of Distributor's association with ATM shall be held in strict
confidence during the term of this Agreement and after its termination.
Distributor will cause its employees and agents to execute agreements
(each an "Employee Agreement") that they will individually be bound by
the provisions of this Section 9, and Distributor will bear the burden
of enforcing the Employee Agreements. ATM and its affiliates will be
express third party beneficiaries of the Employee Agreements.
10) DISTRIBUTOR INDEPENDENT. This Agreement shall be create a partnership,
joint venture, agency, employer/employee or similar relationship
between ATM and Distributor. Distributor shall be an independent
contractor. ATM shall not be required to withhold any amounts for any
taxes from sums becoming due to Distributor under this Agreement.
11) COSTS AND EXPENSES. Distributor shall bear any and all costs or
expenses incurred by Distributor to perform its obligation under this
Agreement, including, but not limited to, sub-contracting, insurance,
and promotional expenses.
12) LIMITATION. Distributor is not authorized to extend any warranty or
guarantee or to make representations or claims with respect to ATM's
services without express written authorization from ATM. //WR// //KHL//
13) INDEMNIFICATION. Distributor shall indemnify and hold ATM harmless of
and from any and all claims or liability arising as a result of
negligent, intentional or other acts of Distributor or its agents or
Distributors.
14) GOVERNING LAW. THIS AGREEMENT, AND ALL TRANSACTIONS CONTEMPLATED
HEREBY, SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA. THE
PARTIES HEREIN WAIVE TRIAL BY JURY AND AGREE TO SUBMIT TO THE PERSONAL
JURISDICTION AND VENUE OF A U.S. COURT OF SUBJECT MATTER JURISDICTION
LOCATED IN XXX XXXX XXXXXX, XXXXX XX XXX XXXX, XXXXXX XXXXXX OF
AMERICA.
15) NOTICES. Any notice under this Agreement shall be deemed given on the
third business day following the mailing of any such notice, postage
paid, to the address set forth below.
16) ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties and any representation, promise or condition not
incorporated herein shall not be binding upon either party.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
written above.
ATM SERVICES, LTD. [Address]
By: //s// Xxxxxx Xxxxxxxxx 9/30/99 See Below //WR//
----------------------------------------- 10/8/99
Xxxxxx Xxxxxxxxx
Chairman
MASTER DISTRIBUTOR [Address]
By: //s// Kyou Hong Lee //KHL//
--------------------
Name: Kyou Hong Lee
Title: CEO
//WR//
//WR// Signed subject to the mutual acceptance and approval by both
parties under separate agreement to items #1 the Territory, #2 the Master
Distributor Fee and #8 Termination. //WR// //KHL//
