Marketing Distribution and Sales Agreement August 11, 2003
| Marketing Distribution and Sales Agreement |
August
11, 2003
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| Summit Environmental Corp., Inc. & Global Trade Marketing, Inc. |
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1 of
5
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MARKETING,
DISTRIBUTION, AND SALES AGREEMENT
(Summit
-
Global)
This
agreement (the “Agreement”) is entered into effective August 5, 2003,
by
and between
Summit
Environmental Corporation, Inc. (“Summit”), a Texas corporation, and Global
Trade
Marketing
Inc. hereinafter referred to as (“Global”), a New York corporation.
In
consideration of the representations, promises and undertakings set forth below,
the parties agree as follows:
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1.
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Representations
by Summit.
Summit Represents to Global as
follows:
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1.1
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Summit
either manufactures or has other companies manufacture for it certain
products listed on Exhibit 1 attached hereto (the “Products”). Summit has
the exclusive right to manufacture and market each of the Products
in any
territory or industry world wide due to Summit(s) ownership of the
patents
and/or patent rights of Surfactant Blend A - FlameOut®, FlameOut® Foam,
(previously Surfactant Blend A-ColdFire 302), and FirePower
911TM.
(Both us and private label
versions)
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1.2
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Summit
enters into marketing agreements with companies to market the Products
in
specific areas of the world. Based upon the representations and covenants
of Global below, Summit is willing to assign Global the marketing
rights
named herein on the terms set forth
below.
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1.3
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Summit
agrees to not unreasonably deny Global their request to amend the
Exhibit
2 enabling Global to expand its exclusive marketing and distribution
network into other marketing areas; as they become known, provided
that
Summit has not already established a distribution network in said
specific
market.
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1.4
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Summit
shall extend to Global the rights to include FlameOut® or FlameOut® Foam
in fire extinguishing units manufactured by entities other than Global
but
with the sole approval authority remaining with Summit. These systems
shall include those already designed for residential-commercial use
or
those yet to be manufactured which would include FlameOut®. This provision
shall include FlameOut® contained in sealed containers or existing
FlameOut® containers.
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2.
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Representations
by Global.
Global represents to Summit as
follows:
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2.1
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Global
is a marketing entity which has manufacturer representation presence,
in
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| Marketing Distribution and Sales Agreement |
August
11, 2003
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| Summit Environmental Corp., Inc. & Global Trade Marketing, Inc. |
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of
0
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Xxxxx
Xxxxxxx; more specifically, Chile, Argentina, Brazil, Uruguay, Paraguay and
Venezuela.
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2.2
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Global
is an experienced marketer and product supplier to the industry or
market
herein mentioned. It has the contacts and sales representatives needed
to
market the Products in the territories or industries described herein.
Further, Global possesses the contacts and representation to service
the
accounts established by sales resulting from this
agreement.
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3.
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Appointment
of Global
as Exclusive Marketing, Distribution, and Sales Representation for
Summit.
Summit authorizes Global to market the Products along with the use
of its
trademarks and trade names so long as Summit is acknowledged in
conjunction with said usage in specific geographic areas (the
“Territories”) or industries (the “Industries”) described in Exhibit 2
attached hereto. Global will use its best efforts to research, develop,
test, and evaluate the Products and their potential in the Territories
and
Industries. Global may market the Products themselves or designate
sub-marketers with in the Territories and Industries. The term of
this
agreement shall be for five years for the date of its
execution.
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4.
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Global
Obligations.
Global covenants to do the
following:
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4.1
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Identify
the Territory or Industry for which each sale Product(s) is to be
made.
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4.2
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Exert
its best effort to market the Products in the Territories and
Industries.
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4.3
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Not
sell or promote competing products in the Territories and
Industries.
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4.4
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Bring
The Company website and marketing data current to reflect the integrity
of
the products and their unique certification and
listings.
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4.5
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Global
acknowledges Summit’s position of final approval for the use of FlameOut®
in various fire extinguishing systems as contained in paragraph 1.4
herein. The use of FlameOut® will result in a royalty payable to Summit
per said granting of repackaging rights, which will be defined by
a
separate amendment to this
agreement.
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5.
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Summits
Obligations.
Summit covenants to do the
following:
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5.1
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Deliver
as promptly as practicable all Global orders, FOB, point of origin,
by
shipment to such locations as Global shall designate, unless Global
shall
accept delivery by use of their own
vendor.
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| Marketing Distribution and Sales Agreement |
August
11, 2003
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| Summit Environmental Corp., Inc. & Global Trade Marketing, Inc. |
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5.2
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With
regard to Global marketing rights, Summit agrees not sell Products
to
persons other than Global within the Territories or Industries, within
the
scope of those registered to Exhibit 2 herein and protected by the
non-circumvention/non-disclosure agreement between the two parties
herein
dated August 1, 2003.
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5.3
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Promptly
refer to Global all leads, inquiries or prospects regarding potential
purchasers of the Products within any Territory or Industry of the
marketing rights.
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5.4
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Provide
Global with suggested retail/wholesale list prices for the Products
in
their respective Territories or
Industries.
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6.
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Prices
and Terms of Payment.
Exhibit 1 lists the prices Summit shall charge for each Product.
Upon 90
days written notice from Summit to Global, Summit may change these
prices,
but only to reflect (1) demonstrated increases in Summit’s direct costs of
goods and/or (2) increases in the consumer price index published
by the
U.S. Department of Labor. All prices are FOB, point of origin. Payment
terms are cash with order (50% down
and 50% balance due on shipping readiness), use of the United States
Ex-Im
Bank, Export Credit program, or an irrevocable letter of credit on
a bank
favorable to Summit.
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7.
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Delivery.
Each shipment order will have a pre-negotiated delivery date for
delivery
due to the customer, size of order, and the product with any specific
requirements for said order, if delivered to an entity other than
Global.
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In
General:
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7.1
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FlameOut®
Bulk Products - 3 weeks. Summit shall have sufficient inventory to
fill
order of up to 3 pallets at all
times.
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7.2
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FlameOut®
Foam - 4 weeks.
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7.3
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Custom-made
Products - 8 weeks or longer.
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8.
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Use
of Name and Trademarks.
Global shall prominently display and use Summit’s name, trademarks, trade
names, and logos in the operation of the marketing rights granted
herein.
Global may indicate in signs, advertising, and other publicity and
marketing materials that Global is authorized as marketing representation
of Summit’s Products as contained in Exhibit 2 herein. Global shall not
use Summit’s name in Global’s own corporate name or any fictitious
business name.
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9.
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Warranties.
Summit shall provide Global with a standard warranty for each Product
Global markets on behalf of Summit. The warranties shall conform
to
reasonable commercial
standards when compared to other competitive products. Global shall
pass
through the warranties to all persons who purchase any Product from
Summit/Global without varying any of the warranties’ terms or provisions,
Summit shall repair or replace any Product covered by a warranty
that
malfunctions, fails to operate or is otherwise
defective.
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| Marketing Distribution and Sales Agreement |
August
11, 2003
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| Summit Environmental Corp., Inc. & Global Trade Marketing, Inc. |
Page 4
of
5
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10.
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Indemnities.
The parties shall indemnify each other as
follows:
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10.1
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Global
shall indemnify Summit and hold Summit harmless against, and defend
against, each claim and damage of every kind for injury to or death
of any
person or for damage to or loss of property, arising out of or attributed,
directly or indirectly, to the conduct, operations or performance
of
Global.
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10.2
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Summit
shall indemnify Global and hold Global harmless against, and defend
against, each claim and damage of every kind arising out of any defects,
failures or malfunctions of any Product, except those caused by Global
or
otherwise arising out of or attributed, directly or indirectly, to
the
conduct, operations or performance of Global. Summit shall at all
times
maintain product liability insurance covering all Products sold to
or
through Global with a maximum limit of $2 million per occurrence.
Such
policy of insurance shall name Global as an additional insured party,
and
Summit shall provide a copy of such a certificate of the policy to
Global
upon the execution of this
agreement.
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11.
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Assignment.
This Agreement may not be assigned by either party without the prior
written consent of the other party. A change in control of Global
shall be
considered an assignment.
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12.
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Termination
of the Agreement.
Each party to this Agreement, at its option, and without prejudice
to any
other remedy it may have at law or in equity, may terminate the Agreement
on 30-day notice to the other party for any of the following causes
not
corrected within such 30-day notice period: If the other party
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12.1
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Is
adjudged as voluntarily or involuntarily
bankrupt.
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12.2
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Allows
a money judgement against it to remain unsettled for 90 days or
longer.
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12.3
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Becomes
insolvent or has a receiver of its assets or property
appointed.
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12.4
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Makes
an assignment for the benefit of its
creditors.
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| Marketing Distribution and Sales Agreement |
August
11, 2003
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| Summit Environmental Corp., Inc. & Global Trade Marketing, Inc. |
Page 5
of
5
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12.5
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Institutes
or suffers to be instituted a proceeding for the reorganization or
rearrangement of its affairs.
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12.6
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Defaults
in the performance of any material obligation under this
Agreement.
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13.
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Disputes.
All disputes concerning this Agreement’s interpretation or validity, or
the performance by the parties of their obligations under this Agreement,
shall be governed by and resolved in accordance with the laws of
the State
of Texas, county of Xxxxx. In any legal or equitable action or arbitration
between the parties, the prevailing party shall be entitled to recover
its
reasonable attorneys’ fees and its other costs of the action or
proceeding. No waiver by a party may constitute a breach of this
Agreement
by the other party, or any delay or failure by a party to exercise
any
right given to it hereunder or to insist upon the strict performance
by
the other party of its obligations hereunder, shall constitute a
waiver by
either party of its right at any time to insist upon the strict compliance
by the other party with the provisions
hereof.
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14.
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Entire
Agreement. This Agreement supersedes all earlier agreements between
the
parties. It contains all the terms and conditions agreed upon by
the
parties with reference to its subject matter. It can be changed or
modified by written instrument only, executed by both
parties.
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15. Notices.
Any Notices a party sends to the other party pursuant to this Agreement (as
distinguished from notices sent pursuant to litigation or dispute arbitration)
shall be deemed delivered, if sent by regular mail, three days after deposited
in a post office; if sent by fax or electronic mail, the day of receipt if
received on a regular business day before 5:00 p.m., otherwise, the next
business day; or if sent by certified mail or courier delivery, the day of
receipt. The addresses of the parties are as follows or as may be changed by
written notification by one party to the other party:
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Summit
Environmental Corporation, Inc.
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Global
Trade Marketing, Inc.
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000
X Xxxxx Xxxxxx
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00
Xxxxxxx Xxx.
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Xxxxxxxx,
XX 00000
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Xxxxxxxx,
XX 00000
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Fax:
000-000-0000
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Fax:
000-000-0000
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Summit
Environmental Corporation, Inc.
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Global
Trade Marketing, Inc.
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By:
/s/
B. Xxxxx
Xxxxxx
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By:
/s/
Xxxxxxx
Xxxxxxxx
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B. Xxxxx Xxxxxx, CEO
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Xxxxxxx Xxxxxxxx, President
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Date:
8-25-2003
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Date:
08/25/2003
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