EXHIBIT 2.3
CONSULTING AGREEMENT
This Business Consultant's Agreement ("Agreement") is entered into as of
(April 4, 1998) between (Ultrastrip Systems Inc.) a State Of Florida
Corporation, with its principal place of business at P.O. Box 0000 ( Xxxxxx, Xx
34995) ("Client") and (Xxxx and Xxxx Xxxxxxxxxx, a Sole Proprietorship) with its
principal place of business at 0000X XX. Xxxxx Xxxxxx Xxxxx Xxxx Xxxx, Xx 00000,
("Consultant").
GENERAL
The Consultant is engaged in the business of providing start up
management, marketing, and selling services for various businesses considering
becoming a public corporation.
The Client desires to retain the Consultant to obtain individuals and
business entities to purchase it's products, manage it's company, and provide
the necessary services to the Client to become a publicly trading company.
In consideration for the mutual promises, covenants, and Agreements made
below, the parties, intending to be legally bound, agree as follows:
AGREEMENT
1. NON-EXCLUSIVE RIGHT TO SOLICIT
1.1 Subject to the provisions of Section 1.2, the Client grants to the
Consultant the non-exclusive right to solicit individuals and other business
entities on behalf of the Client with promotional, selling and marketing
materials for the Client's products.
1.2 The Consultant reserves the right to solicit those individuals and business
entities defined in Exhibit A attached.
2. TRADEMARKS AND TRADE NAMES. Client reserves all fights to the trade names and
trademarks and to any other commercial symbols that it may adopt or use ftom
time-to-time.
3. INDEPENDENT CONTRACTOR. The Consultant is not an employee of the Client for
any purpose whatsoever, but is an independent contractor, The Client is
interested only in the results obtained by the Consultant, that will have sole
control of the manner and means of performing under this Agreement. The Client
will not have the right to require the Consultant to do anything that would
jeopardize the relationship of independent contractor between the Client and the
Consultant. All expenses and disbursements incurred by the Consultant in
connection with this Agreement will be borne wholly and completely by the
Consultant. The
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Consultant does not have, nor will the Consultant hold itself out as having any
right, power or authority to create any contract or obligation, either express
or implied, on behalf of, or binding upon the Client, unless the Client will
consent to that in writing, The Consultant will have the right to appoint and
will be solely responsible for the Consultant's own solicitation force,
employees, agents and representatives, who will be at the Consultant's own risk,
expense and supervision and will not have any claim against the Client for
compensation or reimbursement. The Consultant may represent other products that
do not compete directly or indirectly with products covered by this Agreement
and may exercise the Consultant's own discretion in obtaining promotional,
selling and marketing services, hiring personnel and otherwise complying with
the terms of this Agreement.
4. ACCEPTANCE. Individuals, partnerships, corporations and other business
entities solicited by the Consultant to provide promotional, selling and
marketing services for the Client will be submitted to and subject to acceptance
by the Client. Only the Client may decide, in its sole discretion, whether to
accept or reject any individual or entity solicited by the Consultant. The
Client's acceptance is expressly conditioned upon such individual or entity
executing an Independent Sales Representative Agreement.
5. COMPENSATION AND COMMISSION. THE CLIENT WILL PAY THE CONSULTANT A FEE EQUAL
TO THE DIFFERENCE BETWEEN 2% OF THE NET AMOUNT OF THE CLIENT'S INVOICES TO
PURCHASERS AS DETERMINED ACCORDING TO EXHIBIT B ATTACHED. ADDITIONALLY, THE
CLIENT WILL PAY TO THE CONSULTANT A WEEKLY DRAW AS OUTLINED IN EXHIBIT B.
Despite anything to the contrary contained in this Agreement, the Client will
reimburse the Consultant for those certain extraordinary travel expenses
incurred by the Consultant and agreed upon by the Client and the Consultant
prior to the Consultant incurring such expenses.
6. BEST EFFORTS. The Consultant will use its best efforts to obtain contracts
for the sale of equipment, contract services, and distributor agreements, for
the Client and to solicit individuals, partnerships, corporations and other
business entities to perform such services for the Client.
7. TERM AND TERMINATION. The term of this Agreement will be for a period of 8
months from the date first written above. At the end of said period, it is the
intent of the parties to re-negotiate this Agreement; however, if a new contract
is not entered into, the Contractor will continue to receive its commissions
pursuant to Exhibit B the Compensation Agreement
8. MISREPRESENTATION. In the event the Consultant, at any time during its
association with the Client, will be guilty of gross negligence, intentional
misconduct or intentional misrepresentation, such negligence, misconduct or
misrepresentation will be deemed an immediate breach of this Agreement. Upon
such breach, or any other breach of this Agreement by the Consultant, this
Agreement will terminate immediately upon written notice by the Client, and the
Consultant will not be entitled to claim any compensation for damages for, in
respect of, or by reason of such termination.
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9. PROPRIETARY INFORMATION. The customers, business, products, technology,
business connections, customer lists, procedures, operations, techniques and
other aspects of the business of the Client are established at great expense and
protected as confidential information and trade secrets and provide the Client
with a substantial competitive advantage of selling its products. The Consultant
will have access to, and be entrusted with, trade secrets, confidential
information and proprietary information, and the Client would suffer great loss
and injury if the Consultant would disclose this information or use it to
compete with the Client. Consequently, the Consultant agrees that during its
relationship with the Client, and from then on, it will not, within the
geographic territory encompassed by the business of the Client at the
termination of that relationship, directly or indirectly, either individually or
as an employee, agent, partner, shareholder, or in any other capacity, use or
disclose, or cause to be used or disclosed, any trade secret, confidential
information or proprietary information acquired by the Consultant during its
relationship with the Client.
10. INDEMNIFICATION. The Consultant agrees to defend, indemnify, and hold the
Client harmless from any and all liabilities, losses, costs, damages, penalties
and any other expenses including attorneys fees arising directlv or indirectly,
either from the Consultant's acts or omissions or the Consultant's breach of any
obligation imposed or sought to be imposed by or according to this Agreement.
The Client will not be liable to the Consultant, or to anyone who may claim any
right due to a relationship with the Consultant, for any acts or omissions by
the Consultant in the performance of this Agreement or on the part of the
employees or agents of the Consultant. The Consultant will indemnify and hold
the Client free and harmless from any obligation, cost claim, judgment,
attorneys, fees, and attachments arising from, growing out of, or in any way
connected with the services rendered to the Client under the terms of this
Agreement.
11. GENERAL PROVISIONS
11.1 ASSIGNMENT. Except as set forth in this section, neither this Agreement nor
any rights under this Agreement, in whole or in part, will be assignable or
otherwise transferable by either party without the express written consent of
the other party. Any attempt by either party to assign any of its rights or
delegate any of its duties under this Agreement without the prior written
consent of the other party will be null and void. Subject to the above, this
Agreement will be binding upon and take effect for the benefit of the successors
and assigns of the parties to this Agreement.
11.2 WAIVER, AMENDMENT, MODIFICATION. No waiver, amendment or modification,
including those by custom, usage of trade, or course of dealing, of any
provision of this Agreement will be effective unless in writing and signed by
the party against whom such waiver, amendment or modification is sought to be
enforced. No waiver by any party of any default in performance by the other
party under this Agreement or of any breach or series of breaches by the other
party of any of the terms or conditions of this Agreement will constitute a
waiver of any subsequent default in performance under this Agreement or any
subsequent
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breach of any terms or conditions of that Agreement. Performance of any
obligation required of a party under this Agreement may be waived only by a
written waiver signed by a duly authorized officer of the other party, that
waiver will be effective only with respect to the specific obligation described
in that waiver.
11.3 FORCE MAJEURE. Neither party will be deemed in default of this Agreement to
the extent that performance of its obligations, or attempts to cure any breach,
are delayed or prevented by reason of circumstance beyond its reasonable
control, including without limitation fire, natural disaster, earthquake,
accident or other acts of God ("Force Majeure"), provided that the party seeking
to delay its performance gives the other written notice of any such Force
Majeure within 15 days after the discovery of the Force Majeure, and further
provided that such party uses its good faith efforts to cure the Force Majeure.
If there is a Force Majeure, the time for performance or cure will be extended
for a period equal to the duration of the Force Majeure. This Article will not
be applicable to any payment obligations of either party.
11.4 SETTLEMENT OF DISPUTES
11.4.1 Each party acknowledges and agrees that, if there is any breach of this
Agreement, including, without limitation, unauthorized use or disclosure of
Confidential Information or other Information of the other party, the
non-breaching party will suffer irreparable injury that cannot be compensated by
money damages, and therefore, will not have an adequate remedy at law.
Accordingly, if either party institutes an action or proceeding to enforce the
provisions of this Agreement, such party will be entitled to obtain such
injunctive relief, specific performance, or other equitable remedy from a court
of competent jurisdiction as may be necessary or appropriate to prevent or
curtail any such breach, threatened or actual. These will be in addition to and
without prejudice to such other rights as such party may have in law or in
equity.
11.4.2 Any dispute, controversy, or claim arising out of or related to this
Agreement, or the creation, validity, interpretation, breach, or termination of
this Agreement will be referred to mediation before, and as a condition
precedent to, the initiation of any adjudicative action or proceeding, including
arbitration. The mediation will be held in Stuart, Florida. Either party may
demand mediation in writing, serving on the other party a statement of the
dispute, controversy, or claim, and the facts relating to it, in reasonable
detail. Furthermore, if within thirty (30) days after such demand, the parties
have not agreed upon a mediator and commenced mediation, the matter will be
referred to arbitration under Section 11.4.3. Furthermore, if, within forty-five
(45) days after such demand the matter has not been resolved to the satisfaction
of both parties, then the matter will be refeffed to arbitration under Section 1
11.4.3.
11.4.3 Any dispute, controversy, or claim arising out of or related to this
Agreement, or the creation, validity, interpretation, breach, or termination of
this Agreement that has not been resolved amicably among the parties by
mediation under Section 11.4.2 will be submitted to
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binding arbitration using the following procedure:
11.4.4 The arbitration will be held in ( Stuart, Florida), before a panel of
three arbitrators. Either party may demand arbitration in writing, serving on
the other party a statement of the dispute, controversy, or claim, and the facts
relating to it, in reasonable detail, and the arbitrator nominated by that
party.
11.4.5 Within thirty (30) days after such demand, the other party will name its
arbitrator, and the two arbitrators named by the parties will, within ten (10)
days, select a third arbitrator,
11.4.6 The arbitration will be governed by the Commercial Arbitration Rules of
the American Arbitration Association (the "AAA"), except as expressly provided
in this Article. However, the arbitration will be administered by any
organization mutually agreed upon by the parties. If the parties are unable to
agree upon the organization to administer the arbitration, it will be
administered by the AAA. The arbitrators may not amend or disregard any
provision of this section.
11.4.7 The expenses of arbitration will be borne by the party against whom the
decision is rendered, or apportioned in accordance with the decision of the
arbitrators if there is a compromise decision. Judgment upon any award may be
entered in any court of competent jurisdiction. All notices from one party to
the other relating to any arbitration under this Agreement will be in writing
and will be effective if given in accordance with Section 11.11 below.
11.5 CUMULATIVE RIGHTS. Any specific right or remedy provided in this Agreement
will not be exclusive but will be cumulative upon all other rights and remedies
set forth in this section and allowed under applicable law.
11.6 GOVERNING LAW. This Agreement will be governed by the laws of the State
Florida applicable to Agreements made and fully performed in the State of
Florida by Florida residents. Disputes not resolved by mediation or arbitration
will be heard in the appropriate federal or state courts located in Xxxxxx
County,Florida.
11.7 ENTIRE AGREEMENT. The parties acknowledge that this Agreement expresses
their entire understanding and agreement, and that there have been no
warranties, representations, covenants or understandings made by either party to
the other except such as are expressly set forth in this section. The parties
further acknowledge that this Agreement supersedes, terminates and otherwise
renders null and void any and all prior agreements or contracts, whether written
or oral, entered into between both parties.
11.8 COUNTERPARTS. This Agreement may be executed in multiple counterparts, any
one of which will be deemed an original, but all of which will constitute one
and the same instrument.
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11.9 ATTORNEY FEES. If either party is required to retain the services of any
attorney to enforce or otherwise litigate or defend any matter or claim arising
out of or in connection with this Agreement, then the prevailing party will be
entitled to recover from the other party, in addition to any other relief
awarded or granted, its reasonable costs and expenses (including attorneys'
fees) incurred in the proceeding.
11.10 SEVERABILITY. If any provision of this Agreement is found invalid or
unenforceable under judicial decree or decision, the remainder will remain valid
and enforceable according to its terms.
11.11 NOTICES. All notices, demands or consents required or permitted under this
Agreement will be in writing and will be delivered, sent by facsimile or mailed
certified return receipt requested to the respective parties at the addresses
set forth above or at such other address as such party will specify to the other
party in writing. Any notice required or permitted to be given by the provisions
of this Agreement will be conclusively deemed to have been received on the day
it is delivered to that party by U.S. Mail with Acknowledgment of Receipt or by
any commercial courier providing equivalent acknowledgment of receipt.
Captions and section headings used in this Agreement are for convenience
only and are not a part of this Agreement and will not be used in construing it.
We have carefully reviewed this Agreement and agree to and accept its terms
and conditions. We are executing this Agreement as of the day and year first
written above.
CONTRACTOR CLIENT
s/ Xxxx Xxxxxxxxxx s/ Xxxxxx XxXxxxx
s/ Xxxx Xxxxxxxxxx
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EXHIBIT A
CUSTOMER LIST
1. All of the Shipyards and Shipmanagement Companies worlwide.
2. All of the Above Ground Storage Facilities and companies servicing those
industries.
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EXHIBIT B
REPRESENTATIVE'S COMPENSATION
1. The Representative's compensation for work performed under this Agreement
will be as follows: The Representative will be entitled to a total commission
for each individual sale of the Products arranged solely or jointly through the
Representative equal to 2 % percent of the net invoice of each sale. The
Representative will be paid a pro rata portion of each partial or total
payment(s) made by a customer on any individual sale equal to the applicable
commission percentage provided above.
The term "net invoice price" will mean the total invoice price that the
sale is invoiced to the customer, but excluding shipping and mailing costs,
taxes, insurance, any allowances or discounts granted to the customer and all
charges for installation or instruction.
1.1 The Client will pay to the Representative a weekly draw towards the above
fee of $2,000.00 for the period 4-2-98 thru 12/31/98. The total amount of the
draw will be deducted from the fee paid above at the end of each year.
2. There will be deducted from any sums due the Representative:
2.1 An amount equal to commissions previously paid or credited to the
Representative on sales where all or substantially all of the consideration
relating to that has since been returned to the customer or in the event only
a portion of such consideration has since been returned to the customer or
allowances have been credited to the customer by the Company, the pro rata
amount of previously paid or credited commissions on such returns or
allowances.
2.2 A pro rata amount of commissions previously paid or credited to the
Representative on sales where less than the total purchase price of the
Products is ultimately paid by the customer, whether by reason of the
customers bankruptcy, insolvency or for any other reason whatsoever, in the
Company's judgment, renders the account uncollectible in whole or in part, in
which event, if any sums are later realized upon the uncollectible account,
the Company will pay the Representative the percentage of comniission
applicable to the amount of the actual collection.
3. When an order received by the Company through the Representative has been
influenced by another of the Company's sales representatives, or the Product
is to be delivered outside of the Representative's business area, the Company
may, in its sole discretion, but will not be required to, designate a
commission split between the Representative and any one or more other
authorized sales representative(s), as the case may be. Any such commission
split may be discussed with the sales representatives involved, but the
Company will make any decision in its own sole discretion, and any such
decision will be final.
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CONSULTING AGREEMENT
This Business Consultant's Agreement ("Agreement") is entered into as of
(April 4, 1998) between (Ultrastrip Systems Inc.) a State Of Florida
Corporation, with its principal place of business at P.O. Box 0000 ( Xxxxxx, Xx
34995) ("Client") and (Xxxxxx XxXxxxx, a Sole Proprietorship) with its principal
place of business at 000 X. Xxxxxxx Xxxxx, Xxxxxx, Xx, ("Consultant").
GENERAL
The Consultant is engaged in the business of providing start up
management, marketing, and selling services for various businesses considering
becoming a public corporation.
The Client desires to retain the Consultant to obtain individuals and
business entities to purchase it's products, manage it's company, and provide
the necessary services to the Client to become a publicly trading company.
In consideration for the mutual promises, covenants, and Agreements made
below, the parties, intending to be legally bound, agree as follows:
AGREEMENT
1. NON-EXCLUSIVE RIGHT TO SOLICIT
1.1 Subject to the provisions of Section 1.2, the Client grants to the
Consultant the non-exclusive right to solicit individuals and other business
entities on behalf of the Client with promotional, selling and marketing
materials for the Client's products.
1.2 The Consultant reserves the right to solicit those individuals and business
entities defined in Exhibit A attached.
2. TRADEMARKS AND TRADE NAMES. Client reserves all fights to the trade names and
trademarks and to any other commercial symbols that it may adopt or use ftom
time-to-time.
3. INDEPENDENT CONTRACTOR. The Consultant is not an employee of the Client for
any purpose whatsoever, but is an independent contractor, The Client is
interested only in the results obtained by the Consultant, that will have sole
control of the manner and means of performing under this Agreement. The Client
will not have the right to require the Consultant to do anything that would
jeopardize the relationship of independent contractor between the Client and the
Consultant. All expenses and disbursements incurred by the Consultant in
connection with this Agreement will be borne wholly and completely by the
Consultant. The
2
Consultant does not have, nor will the Consultant hold itself out as having any
right, power or authority to create any contract or obligation, either express
or implied, on behalf of, or binding upon the Client, unless the Client will
consent to that in writing, The Consultant will have the right to appoint and
will be solely responsible for the Consultant's own solicitation force,
employees, agents and representatives, who will be at the Consultant's own risk,
expense and supervision and will not have any claim against the Client for
compensation or reimbursement. The Consultant may represent other products that
do not compete directly or indirectly with products covered by this Agreement
and may exercise the Consultant's own discretion in obtaining promotional,
selling and marketing services, hiring personnel and otherwise complying with
the terms of this Agreement.
4. ACCEPTANCE. Individuals, partnerships, corporations and other business
entities solicited by the Consultant to provide promotional, selling and
marketing services for the Client will be submitted to and subject to acceptance
by the Client. Only the Client may decide, in its sole discretion, whether to
accept or reject any individual or entity solicited by the Consultant. The
Client's acceptance is expressly conditioned upon such individual or entity
executing an Independent Sales Representative Agreement.
5. COMPENSATION AND COMMISSION. THE CLIENT WILL PAY THE CONSULTANT A FEE EQUAL
TO THE DIFFERENCE BETWEEN 2% OF THE NET AMOUNT OF THE CLIENT'S INVOICES TO
PURCHASERS AS DETERMINED ACCORDING TO EXHIBIT B ATTACHED. ADDITIONALLY, THE
CLIENT WILL PAY TO THE CONSULTANT A WEEKLY DRAW AS OUTLINED IN EXHIBIT B.
Despite anything to the contrary contained in this Agreement, the Client will
reimburse the Consultant for those certain extraordinary travel expenses
incurred by the Consultant and agreed upon by the Client and the Consultant
prior to the Consultant incurring such expenses.
6. BEST EFFORTS. The Consultant will use its best efforts to obtain contracts
for the sale of equipment, contract services, and distributor agreements, for
the Client and to solicit individuals, partnerships, corporations and other
business entities to perform such services for the Client.
7. TERM AND TERMINATION. The term of this Agreement will be for a period of 8
months from the date first written above. At the end of said period, it is the
intent of the parties to re-negotiate this Agreement; however, if a new contract
is not entered into, the Contractor will continue to receive its commissions
pursuant to Exhibit B the Compensation Agreement
8. MISREPRESENTATION. In the event the Consultant, at any time during its
association with the Client, will be guilty of gross negligence, intentional
misconduct or intentional misrepresentation, such negligence, misconduct or
misrepresentation will be deemed an immediate breach of this Agreement. Upon
such breach, or any other breach of this Agreement by the Consultant, this
Agreement will terminate immediately upon written notice by the Client, and the
Consultant will not be entitled to claim any compensation for damages for, in
respect of, or by reason of such termination.
3
9. PROPRIETARY INFORMATION. The customers, business, products, technology,
business connections, customer lists, procedures, operations, techniques and
other aspects of the business of the Client are established at great expense and
protected as confidential information and trade secrets and provide the Client
with a substantial competitive advantage of selling its products. The Consultant
will have access to, and be entrusted with, trade secrets, confidential
information and proprietary information, and the Client would suffer great loss
and injury if the Consultant would disclose this information or use it to
compete with the Client. Consequently, the Consultant agrees that during its
relationship with the Client, and from then on, it will not, within the
geographic territory encompassed by the business of the Client at the
termination of that relationship, directly or indirectly, either individually or
as an employee, agent, partner, shareholder, or in any other capacity, use or
disclose, or cause to be used or disclosed, any trade secret, confidential
information or proprietary information acquired by the Consultant during its
relationship with the Client.
10. INDEMNIFICATION. The Consultant agrees to defend, indemnify, and hold the
Client harmless from any and all liabilities, losses, costs, damages, penalties
and any other expenses including attorneys fees arising directlv or indirectly,
either from the Consultant's acts or omissions or the Consultant's breach of any
obligation imposed or sought to be imposed by or according to this Agreement.
The Client will not be liable to the Consultant, or to anyone who may claim any
right due to a relationship with the Consultant, for any acts or omissions by
the Consultant in the performance of this Agreement or on the part of the
employees or agents of the Consultant. The Consultant will indemnify and hold
the Client free and harmless from any obligation, cost claim, judgment,
attorneys, fees, and attachments arising from, growing out of, or in any way
connected with the services rendered to the Client under the terms of this
Agreement.
11. GENERAL PROVISIONS
11.1 ASSIGNMENT. Except as set forth in this section, neither this Agreement nor
any rights under this Agreement, in whole or in part, will be assignable or
otherwise transferable by either party without the express written consent of
the other party. Any attempt by either party to assign any of its rights or
delegate any of its duties under this Agreement without the prior written
consent of the other party will be null and void. Subject to the above, this
Agreement will be binding upon and take effect for the benefit of the successors
and assigns of the parties to this Agreement.
11.2 WAIVER, AMENDMENT, MODIFICATION. No waiver, amendment or modification,
including those by custom, usage of trade, or course of dealing, of any
provision of this Agreement will be effective unless in writing and signed by
the party against whom such waiver, amendment or modification is sought to be
enforced. No waiver by any party of any default in performance by the other
party under this Agreement or of any breach or series of breaches by the other
party of any of the terms or conditions of this Agreement will constitute a
waiver of any subsequent default in performance under this Agreement or any
subsequent
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breach of any terms or conditions of that Agreement. Performance of any
obligation required of a party under this Agreement may be waived only by a
written waiver signed by a duly authorized officer of the other party, that
waiver will be effective only with respect to the specific obligation described
in that waiver.
11.3 FORCE MAJEURE. Neither party will be deemed in default of this Agreement to
the extent that performance of its obligations, or attempts to cure any breach,
are delayed or prevented by reason of circumstance beyond its reasonable
control, including without limitation fire, natural disaster, earthquake,
accident or other acts of God ("Force Majeure"), provided that the party seeking
to delay its performance gives the other written notice of any such Force
Majeure within 15 days after the discovery of the Force Majeure, and further
provided that such party uses its good faith efforts to cure the Force Majeure.
If there is a Force Majeure, the time for performance or cure will be extended
for a period equal to the duration of the Force Majeure. This Article will not
be applicable to any payment obligations of either party.
11.4 SETTLEMENT OF DISPUTES
11.4.1 Each party acknowledges and agrees that, if there is any breach of this
Agreement, including, without limitation, unauthorized use or disclosure of
Confidential Information or other Information of the other party, the
non-breaching party will suffer irreparable injury that cannot be compensated by
money damages, and therefore, will not have an adequate remedy at law.
Accordingly, if either party institutes an action or proceeding to enforce the
provisions of this Agreement, such party will be entitled to obtain such
injunctive relief, specific performance, or other equitable remedy from a court
of competent jurisdiction as may be necessary or appropriate to prevent or
curtail any such breach, threatened or actual. These will be in addition to and
without prejudice to such other rights as such party may have in law or in
equity.
11.4.2 Any dispute, controversy, or claim arising out of or related to this
Agreement, or the creation, validity, interpretation, breach, or termination of
this Agreement will be referred to mediation before, and as a condition
precedent to, the initiation of any adjudicative action or proceeding, including
arbitration. The mediation will be held in Stuart, Florida. Either party may
demand mediation in writing, serving on the other party a statement of the
dispute, controversy, or claim, and the facts relating to it, in reasonable
detail. Furthermore, if within thirty (30) days after such demand, the parties
have not agreed upon a mediator and commenced mediation, the matter will be
referred to arbitration under Section 11.4.3. Furthermore, if, within forty-five
(45) days after such demand the matter has not been resolved to the satisfaction
of both parties, then the matter will be refeffed to arbitration under Section 1
11.4.3.
11.4.3 Any dispute, controversy, or claim arising out of or related to this
Agreement, or the creation, validity, interpretation, breach, or termination of
this Agreement that has not been resolved amicably among the parties by
mediation under Section 11.4.2 will be submitted to
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binding arbitration using the following procedure:
11.4.4 The arbitration will be held in ( Stuart, Florida), before a panel of
three arbitrators. Either party may demand arbitration in writing, serving on
the other party a statement of the dispute, controversy, or claim, and the facts
relating to it, in reasonable detail, and the arbitrator nominated by that
party.
11.4.5 Within thirty (30) days after such demand, the other party will name its
arbitrator, and the two arbitrators named by the parties will, within ten (10)
days, select a third arbitrator,
11.4.6 The arbitration will be governed by the Commercial Arbitration Rules of
the American Arbitration Association (the "AAA"), except as expressly provided
in this Article. However, the arbitration will be administered by any
organization mutually agreed upon by the parties. If the parties are unable to
agree upon the organization to administer the arbitration, it will be
administered by the AAA. The arbitrators may not amend or disregard any
provision of this section.
11.4.7 The expenses of arbitration will be borne by the party against whom the
decision is rendered, or apportioned in accordance with the decision of the
arbitrators if there is a compromise decision. Judgment upon any award may be
entered in any court of competent jurisdiction. All notices from one party to
the other relating to any arbitration under this Agreement will be in writing
and will be effective if given in accordance with Section 11.11 below.
11.5 CUMULATIVE RIGHTS. Any specific right or remedy provided in this Agreement
will not be exclusive but will be cumulative upon all other rights and remedies
set forth in this section and allowed under applicable law.
11.6 GOVERNING LAW. This Agreement will be governed by the laws of the State
Florida applicable to Agreements made and fully performed in the State of
Florida by Florida residents. Disputes not resolved by mediation or arbitration
will be heard in the appropriate federal or state courts located in Xxxxxx
County,Florida.
11.7 ENTIRE AGREEMENT. The parties acknowledge that this Agreement expresses
their entire understanding and agreement, and that there have been no
warranties, representations, covenants or understandings made by either party to
the other except such as are expressly set forth in this section. The parties
further acknowledge that this Agreement supersedes, terminates and otherwise
renders null and void any and all prior agreements or contracts, whether written
or oral, entered into between both parties.
11.8 COUNTERPARTS. This Agreement may be executed in multiple counterparts, any
one of which will be deemed an original, but all of which will constitute one
and the same instrument.
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11.9 ATTORNEY FEES. If either party is required to retain the services of any
attorney to enforce or otherwise litigate or defend any matter or claim arising
out of or in connection with this Agreement, then the prevailing party will be
entitled to recover from the other party, in addition to any other relief
awarded or granted, its reasonable costs and expenses (including attorneys'
fees) incurred in the proceeding.
11.10 SEVERABILITY. If any provision of this Agreement is found invalid or
unenforceable under judicial decree or decision, the remainder will remain valid
and enforceable according to its terms.
11.11 NOTICES. All notices, demands or consents required or permitted under this
Agreement will be in writing and will be delivered, sent by facsimile or mailed
certified return receipt requested to the respective parties at the addresses
set forth above or at such other address as such party will specify to the other
party in writing. Any notice required or permitted to be given by the provisions
of this Agreement will be conclusively deemed to have been received on the day
it is delivered to that party by U.S. Mail with Acknowledgment of Receipt or by
any commercial courier providing equivalent acknowledgment of receipt.
Captions and section headings used in this Agreement are for convenience
only and are not a part of this Agreement and will not be used in construing it.
We have carefully reviewed this Agreement and agree to and accept its terms
and conditions. We are executing this Agreement as of the day and year first
written above.
CONTRACTOR CLIENT
s/ Xxxxxx XxXxxxx s/ Xxxxxx XxXxxxx
7
EXHIBIT A
CUSTOMER LIST
1. All of the Shipyards and Shipmanagement Companies worlwide.
2. All of the Above Ground Storage Facilities and companies servicing those
industries.
8
EXHIBIT B
REPRESENTATIVE'S COMPENSATION
1. The Representative's compensation for work performed under this Agreement
will be as follows: The Representative will be entitled to a total commission
for each individual sale of the Products arranged solely or jointly through the
Representative equal to 2 % percent of the net invoice of each sale. The
Representative will be paid a pro rata portion of each partial or total
payment(s) made by a customer on any individual sale equal to the applicable
commission percentage provided above.
The term "net invoice price" will mean the total invoice price that the
sale is invoiced to the customer, but excluding shipping and mailing costs,
taxes, insurance, any allowances or discounts granted to the customer and all
charges for installation or instruction.
1.1 The Client will pay to the Representative a weekly draw towards the above
fee of $2,500.00 for the period 4-2-98 thru 12/31/98. Increasing to $5,000 per
week beginning 1/1/99 thru 12/31/99. The total amount of the draw will be
deducted from the fee paid above at the end of each year.
2. There will be deducted from any sums due the Representative:
2.1 An amount equal to commissions previously paid or credited to the
Representative on sales where all or substantially all of the consideration
relating to that has since been returned to the customer or in the event only
a portion of such consideration has since been returned to the customer or
allowances have been credited to the customer by the Company, the pro rata
amount of previously paid or credited commissions on such returns or
allowances.
2.2 A pro rata amount of commissions previously paid or credited to the
Representative on sales where less than the total purchase price of the
Products is ultimately paid by the customer, whether by reason of the
customers bankruptcy, insolvency or for any other reason whatsoever, in the
Company's judgment, renders the account uncollectible in whole or in part, in
which event, if any sums are later realized upon the uncollectible account,
the Company will pay the Representative the percentage of comniission
applicable to the amount of the actual collection.
3. When an order received by the Company through the Representative has been
influenced by another of the Company's sales representatives, or the Product
is to be delivered outside of the Representative's business area, the Company
may, in its sole discretion, but will not be required to, designate a
commission split between the Representative and any one or more other
authorized sales representative(s), as the case may be. Any such commission
split may be discussed with the sales representatives involved, but the
Company will make any decision in its own sole discretion, and any such
decision will be final.
9
CONSULTING AGREEMENT
This Business Consultant's Agreement ("Agreement") is entered into as of
(April 4, 1998) between (LTItrastrip Systems Inc.) a State Of Florida
Corporation, with its principal place of business at P.O. Box 0000 ( Xxxxxx, Xx
34995) ("Client") and (Xxxxx Xxxxx, a Sole Proprietorship) with its principal
place of business at 00000 Xxxxxx Xxxx Xx. Xxxxxxxxxx XX, 00000, ("Consultant").
GENERAL
The Consultant is engaged in the business of providing start up
management, marketing, and selling services for various businesses considering
becoming a public corporation.
The Client desires to retain the Consultant to obtain individuals and
business entities to purchase it's products, manage it's company, and provide
the necessary services to the Client to become a publicly trading company.
In consideration for the mutual promises, covenants, and Agreements made
below, the parties, intending to be legally bound, agree as follows:
AGREEMENT
1. NON-EXCLUSIVE RIGHT TO SOLICIT
1.1 Subject to the provisions of Section 1.2, the Client grants to the
Consultant the non-exclusive right to solicit individuals and other business
entities on behalf of the Client with promotional, selling and marketing
materials for the Client's products.
1.2 The Consultant reserves the right to solicit those individuals and business
entities defined in Exhibit A attached.
2. TRADEMARKS AND TRADE NAMES. Client reserves all fights to the trade names and
trademarks and to any other commercial symbols that it may adopt or use ftom
time-to-time.
3. INDEPENDENT CONTRACTOR. The Consultant is not an employee of the Client for
any purpose whatsoever, but is an independent contractor, The Client is
interested only in the results obtained by the Consultant, that will have sole
control of the manner and means of performing under this Agreement. The Client
will not have the right to require the Consultant to do anything that would
jeopardize the relationship of independent contractor between the Client and the
Consultant. All expenses and disbursements incurred by the Consultant in
connection with this Agreement will be borne wholly and completely by the
Consultant. The
2
Consultant does not have, nor will the Consultant hold itself out as having any
right, power or authority to create any contract or obligation, either express
or implied, on behalf of, or binding upon the Client, unless the Client will
consent to that in writing, The Consultant will have the right to appoint and
will be solely responsible for the Consultant's own solicitation force,
employees, agents and representatives, who will be at the Consultant's own risk,
expense and supervision and will not have any claim against the Client for
compensation or reimbursement. The Consultant may represent other products that
do not compete directly or indirectly with products covered by this Agreement
and may exercise the Consultant's own discretion in obtaining promotional,
selling and marketing services, hiring personnel and otherwise complying with
the terms of this Agreement.
4. ACCEPTANCE. Individuals, partnerships, corporations and other business
entities solicited by the Consultant to provide promotional, selling and
marketing services for the Client will be submitted to and subject to acceptance
by the Client. Only the Client may decide, in its sole discretion, whether to
accept or reject any individual or entity solicited by the Consultant. The
Client's acceptance is expressly conditioned upon such individual or entity
executing an Independent Sales Representative Agreement.
5. COMPENSATION AND COMMISSION. THE CLIENT WILL PAY THE CONSULTANT A FEE EQUAL
TO THE DIFFERENCE BETWEEN 2% OF THE NET AMOUNT OF THE CLIENT'S INVOICES TO
PURCHASERS AS DETERMINED ACCORDING TO EXHIBIT B ATTACHED. ADDITIONALLY, THE
CLIENT WILL PAY TO THE CONSULTANT A WEEKLY DRAW AS OUTLINED IN EXHIBIT B.
Despite anything to the contrary contained in this Agreement, the Client will
reimburse the Consultant for those certain extraordinary travel expenses
incurred by the Consultant and agreed upon by the Client and the Consultant
prior to the Consultant incurring such expenses.
6. BEST EFFORTS. The Consultant will use its best efforts to obtain contracts
for the sale of equipment, contract services, and distributor agreements, for
the Client and to solicit individuals, partnerships, corporations and other
business entities to perform such services for the Client.
7. TERM AND TERMINATION. The term of this Agreement will be for a period of 8
months from the date first written above. At the end of said period, it is the
intent of the parties to re-negotiate this Agreement; however, if a new contract
is not entered into, the Contractor will continue to receive its commissions
pursuant to Exhibit B the Compensation Agreement
8. MISREPRESENTATION. In the event the Consultant, at any time during its
association with the Client, will be guilty of gross negligence, intentional
misconduct or intentional misrepresentation, such negligence, misconduct or
misrepresentation will be deemed an immediate breach of this Agreement. Upon
such breach, or any other breach of this Agreement by the Consultant, this
Agreement will terminate immediately upon written notice by the Client, and the
Consultant will not be entitled to claim any compensation for damages for, in
respect of, or by reason of such termination.
3
9. PROPRIETARY INFORMATION. The customers, business, products, technology,
business connections, customer lists, procedures, operations, techniques and
other aspects of the business of the Client are established at great expense and
protected as confidential information and trade secrets and provide the Client
with a substantial competitive advantage of selling its products. The Consultant
will have access to, and be entrusted with, trade secrets, confidential
information and proprietary information, and the Client would suffer great loss
and injury if the Consultant would disclose this information or use it to
compete with the Client. Consequently, the Consultant agrees that during its
relationship with the Client, and from then on, it will not, within the
geographic territory encompassed by the business of the Client at the
termination of that relationship, directly or indirectly, either individually or
as an employee, agent, partner, shareholder, or in any other capacity, use or
disclose, or cause to be used or disclosed, any trade secret, confidential
information or proprietary information acquired by the Consultant during its
relationship with the Client.
10. INDEMNIFICATION. The Consultant agrees to defend, indemnify, and hold the
Client harmless from any and all liabilities, losses, costs, damages, penalties
and any other expenses including attorneys fees arising directlv or indirectly,
either from the Consultant's acts or omissions or the Consultant's breach of any
obligation imposed or sought to be imposed by or according to this Agreement.
The Client will not be liable to the Consultant, or to anyone who may claim any
right due to a relationship with the Consultant, for any acts or omissions by
the Consultant in the performance of this Agreement or on the part of the
employees or agents of the Consultant. The Consultant will indemnify and hold
the Client free and harmless from any obligation, cost claim, judgment,
attorneys, fees, and attachments arising from, growing out of, or in any way
connected with the services rendered to the Client under the terms of this
Agreement.
11. GENERAL PROVISIONS
11.1 ASSIGNMENT. Except as set forth in this section, neither this Agreement nor
any rights under this Agreement, in whole or in part, will be assignable or
otherwise transferable by either party without the express written consent of
the other party. Any attempt by either party to assign any of its rights or
delegate any of its duties under this Agreement without the prior written
consent of the other party will be null and void. Subject to the above, this
Agreement will be binding upon and take effect for the benefit of the successors
and assigns of the parties to this Agreement.
11.2 WAIVER, AMENDMENT, MODIFICATION. No waiver, amendment or modification,
including those by custom, usage of trade, or course of dealing, of any
provision of this Agreement will be effective unless in writing and signed by
the party against whom such waiver, amendment or modification is sought to be
enforced. No waiver by any party of any default in performance by the other
party under this Agreement or of any breach or series of breaches by the other
party of any of the terms or conditions of this Agreement will constitute a
waiver of any subsequent default in performance under this Agreement or any
subsequent
4
breach of any terms or conditions of that Agreement. Performance of any
obligation required of a party under this Agreement may be waived only by a
written waiver signed by a duly authorized officer of the other party, that
waiver will be effective only with respect to the specific obligation described
in that waiver.
11.3 FORCE MAJEURE. Neither party will be deemed in default of this Agreement to
the extent that performance of its obligations, or attempts to cure any breach,
are delayed or prevented by reason of circumstance beyond its reasonable
control, including without limitation fire, natural disaster, earthquake,
accident or other acts of God ("Force Majeure"), provided that the party seeking
to delay its performance gives the other written notice of any such Force
Majeure within 15 days after the discovery of the Force Majeure, and further
provided that such party uses its good faith efforts to cure the Force Majeure.
If there is a Force Majeure, the time for performance or cure will be extended
for a period equal to the duration of the Force Majeure. This Article will not
be applicable to any payment obligations of either party.
11.4 SETTLEMENT OF DISPUTES
11.4.1 Each party acknowledges and agrees that, if there is any breach of this
Agreement, including, without limitation, unauthorized use or disclosure of
Confidential Information or other Information of the other party, the
non-breaching party will suffer irreparable injury that cannot be compensated by
money damages, and therefore, will not have an adequate remedy at law.
Accordingly, if either party institutes an action or proceeding to enforce the
provisions of this Agreement, such party will be entitled to obtain such
injunctive relief, specific performance, or other equitable remedy from a court
of competent jurisdiction as may be necessary or appropriate to prevent or
curtail any such breach, threatened or actual. These will be in addition to and
without prejudice to such other rights as such party may have in law or in
equity.
11.4.2 Any dispute, controversy, or claim arising out of or related to this
Agreement, or the creation, validity, interpretation, breach, or termination of
this Agreement will be referred to mediation before, and as a condition
precedent to, the initiation of any adjudicative action or proceeding, including
arbitration. The mediation will be held in Stuart, Florida. Either party may
demand mediation in writing, serving on the other party a statement of the
dispute, controversy, or claim, and the facts relating to it, in reasonable
detail. Furthermore, if within thirty (30) days after such demand, the parties
have not agreed upon a mediator and commenced mediation, the matter will be
referred to arbitration under Section 11.4.3. Furthermore, if, within forty-five
(45) days after such demand the matter has not been resolved to the satisfaction
of both parties, then the matter will be refeffed to arbitration under Section 1
11.4.3.
11.4.3 Any dispute, controversy, or claim arising out of or related to this
Agreement, or the creation, validity, interpretation, breach, or termination of
this Agreement that has not been resolved amicably among the parties by
mediation under Section 11.4.2 will be submitted to
5
binding arbitration using the following procedure:
11.4.4 The arbitration will be held in ( Stuart, Florida), before a panel of
three arbitrators. Either party may demand arbitration in writing, serving on
the other party a statement of the dispute, controversy, or claim, and the facts
relating to it, in reasonable detail, and the arbitrator nominated by that
party.
11.4.5 Within thirty (30) days after such demand, the other party will name its
arbitrator, and the two arbitrators named by the parties will, within ten (10)
days, select a third arbitrator,
11.4.6 The arbitration will be governed by the Commercial Arbitration Rules of
the American Arbitration Association (the "AAA"), except as expressly provided
in this Article. However, the arbitration will be administered by any
organization mutually agreed upon by the parties. If the parties are unable to
agree upon the organization to administer the arbitration, it will be
administered by the AAA. The arbitrators may not amend or disregard any
provision of this section.
11.4.7 The expenses of arbitration will be borne by the party against whom the
decision is rendered, or apportioned in accordance with the decision of the
arbitrators if there is a compromise decision. Judgment upon any award may be
entered in any court of competent jurisdiction. All notices from one party to
the other relating to any arbitration under this Agreement will be in writing
and will be effective if given in accordance with Section 11.11 below.
11.5 CUMULATIVE RIGHTS. Any specific right or remedy provided in this Agreement
will not be exclusive but will be cumulative upon all other rights and remedies
set forth in this section and allowed under applicable law.
11.6 GOVERNING LAW. This Agreement will be governed by the laws of the State
Florida applicable to Agreements made and fully performed in the State of
Florida by Florida residents. Disputes not resolved by mediation or arbitration
will be heard in the appropriate federal or state courts located in Xxxxxx
County,Florida.
11.7 ENTIRE AGREEMENT. The parties acknowledge that this Agreement expresses
their entire understanding and agreement, and that there have been no
warranties, representations, covenants or understandings made by either party to
the other except such as are expressly set forth in this section. The parties
further acknowledge that this Agreement supersedes, terminates and otherwise
renders null and void any and all prior agreements or contracts, whether written
or oral, entered into between both parties.
11.8 COUNTERPARTS. This Agreement may be executed in multiple counterparts, any
one of which will be deemed an original, but all of which will constitute one
and the same instrument.
6
11.9 ATTORNEY FEES. If either party is required to retain the services of any
attorney to enforce or otherwise litigate or defend any matter or claim arising
out of or in connection with this Agreement, then the prevailing party will be
entitled to recover from the other party, in addition to any other relief
awarded or granted, its reasonable costs and expenses (including attorneys'
fees) incurred in the proceeding.
11.10 SEVERABILITY. If any provision of this Agreement is found invalid or
unenforceable under judicial decree or decision, the remainder will remain valid
and enforceable according to its terms.
11.11 NOTICES. All notices, demands or consents required or permitted under this
Agreement will be in writing and will be delivered, sent by facsimile or mailed
certified return receipt requested to the respective parties at the addresses
set forth above or at such other address as such party will specify to the other
party in writing. Any notice required or permitted to be given by the provisions
of this Agreement will be conclusively deemed to have been received on the day
it is delivered to that party by U.S. Mail with Acknowledgment of Receipt or by
any commercial courier providing equivalent acknowledgment of receipt.
Captions and section headings used in this Agreement are for convenience
only and are not a part of this Agreement and will not be used in construing it.
We have carefully reviewed this Agreement and agree to and accept its terms
and conditions. We are executing this Agreement as of the day and year first
written above.
CONTRACTOR CLIENT
s/ Xxxxx X. Xxxxx s/ Xxxxxx XxXxxxx
7
EXHIBIT A
CUSTOMER LIST
1. All of the Shipyards and Shipmanagement Companies worlwide.
2. All of the Above Ground Storage Facilities and companies servicing those
industries.
8
EXHIBIT B
REPRESENTATIVE'S COMPENSATION
1. The Representative's compensation for work performed under this Agreement
will be as follows: The Representative will be entitled to a total commission
for each individual sale of the Products arranged solely or jointly through the
Representative equal to 2 % percent of the net invoice of each sale. The
Representative will be paid a pro rata portion of each partial or total
payment(s) made by a customer on any individual sale equal to the applicable
commission percentage provided above.
The term "net invoice price" will mean the total invoice price that the
sale is invoiced to the customer, but excluding shipping and mailing costs,
taxes, insurance, any allowances or discounts granted to the customer and all
charges for installation or instruction.
1.1 The Client will pay to the Representative a weekly draw towards the above
fee of $500.00 for the period 8-1-98 thru 12/31/98. The total amount of the draw
will be deducted from the fee paid above at the end of each year.
2. There will be deducted from any sums due the Representative:
2.1 An amount equal to commissions previously paid or credited to the
Representative on sales where all or substantially all of the consideration
relating to that has since been returned to the customer or in the event only a
portion of such consideration has since been returned to the customer or
allowances have been credited to the customer by the Company, the pro rata
amount of previously paid or credited commissions on such returns or allowances.
2.2 A pro rata amount of commissions previously paid or credited to the
Representative on sales where less than the total purchase price of the Products
is ultimately paid by the customer, whether by reason of the customers
bankruptcy, insolvency or for any other reason whatsoever, in the Company's
judgment, renders the account uncollectible in whole or in part, in which event,
if any sums are later realized upon the uncollectible account, the Company will
pay the Representative the percentage of comniission applicable to the amount of
the actual collection.
3. When an order received by the Company through the Representative has been
influenced by another of the Company's sales representatives, or the Product is
to be delivered outside of the Representative's business area, the Company may,
in its sole discretion, but will not be required to, designate a commission
split between the Representative and any one or more other authorized sales
representative(s), as the case may be. Any such commission split may be
discussed with the sales representatives involved, but the Company will make any
decision in its own sole discretion, and any such decision will be final.
9
CONSULTING AGREEMENT
This Business Consultant's Agreement ("Agreement") is entered into as of
(April 4, 1998) between (Ultrastrip Systems Inc.) a State Of Florida
Corporation, with its principal place of business at P.O. Box 0000 ( Xxxxxx, Xx
34995) ("Client") and (Xxxxxxxxxx XxXxxxx, a Sole Proprietorship) with its
principal place of business at 000 X. Xxxxxxx Xxxxx, Xxxxxx, Xx, ("Consultant").
GENERAL
The Consultant is engaged in the business of providing start up
management, marketing, and selling services for various businesses considering
becoming a public corporation.
The Client desires to retain the Consultant to obtain individuals and
business entities to purchase it's products, manage it's company, and provide
the necessary services to the Client to become a publicly trading company.
In consideration for the mutual promises, covenants, and Agreements made
below, the parties, intending to be legally bound, agree as follows:
AGREEMENT
1. NON-EXCLUSIVE RIGHT TO SOLICIT
1.1 Subject to the provisions of Section 1.2, the Client grants to the
Consultant the non-exclusive right to solicit individuals and other business
entities on behalf of the Client with promotional, selling and marketing
materials for the Client's products.
1.2 The Consultant reserves the right to solicit those individuals and business
entities defined in Exhibit A attached.
2. TRADEMARKS AND TRADE NAMES. Client reserves all fights to the trade names and
trademarks and to any other commercial symbols that it may adopt or use ftom
time-to-time.
3. INDEPENDENT CONTRACTOR. The Consultant is not an employee of the Client for
any purpose whatsoever, but is an independent contractor, The Client is
interested only in the results obtained by the Consultant, that will have sole
control of the manner and means of performing under this Agreement. The Client
will not have the right to require the Consultant to do anything that would
jeopardize the relationship of independent contractor between the Client and the
Consultant. All expenses and disbursements incurred by the Consultant in
connection with this Agreement will be borne wholly and completely by the
Consultant. The
2
Consultant does not have, nor will the Consultant hold itself out as having any
right, power or authority to create any contract or obligation, either express
or implied, on behalf of, or binding upon the Client, unless the Client will
consent to that in writing, The Consultant will have the right to appoint and
will be solely responsible for the Consultant's own solicitation force,
employees, agents and representatives, who will be at the Consultant's own risk,
expense and supervision and will not have any claim against the Client for
compensation or reimbursement. The Consultant may represent other products that
do not compete directly or indirectly with products covered by this Agreement
and may exercise the Consultant's own discretion in obtaining promotional,
selling and marketing services, hiring personnel and otherwise complying with
the terms of this Agreement.
4. ACCEPTANCE. Individuals, partnerships, corporations and other business
entities solicited by the Consultant to provide promotional, selling and
marketing services for the Client will be submitted to and subject to acceptance
by the Client. Only the Client may decide, in its sole discretion, whether to
accept or reject any individual or entity solicited by the Consultant. The
Client's acceptance is expressly conditioned upon such individual or entity
executing an Independent Sales Representative Agreement.
5. COMPENSATION AND COMMISSION. THE CLIENT WILL PAY THE CONSULTANT A FEE EQUAL
TO THE DIFFERENCE BETWEEN 2% OF THE NET AMOUNT OF THE CLIENT'S INVOICES TO
PURCHASERS AS DETERMINED ACCORDING TO EXHIBIT B ATTACHED. ADDITIONALLY, THE
CLIENT WILL PAY TO THE CONSULTANT A WEEKLY DRAW AS OUTLINED IN EXHIBIT B.
Despite anything to the contrary contained in this Agreement, the Client will
reimburse the Consultant for those certain extraordinary travel expenses
incurred by the Consultant and agreed upon by the Client and the Consultant
prior to the Consultant incurring such expenses.
6. BEST EFFORTS. The Consultant will use its best efforts to obtain contracts
for the sale of equipment, contract services, and distributor agreements, for
the Client and to solicit individuals, partnerships, corporations and other
business entities to perform such services for the Client.
7. TERM AND TERMINATION. The term of this Agreement will be for a period of 8
months from the date first written above. At the end of said period, it is the
intent of the parties to re-negotiate this Agreement; however, if a new contract
is not entered into, the Contractor will continue to receive its commissions
pursuant to Exhibit B the Compensation Agreement
8. MISREPRESENTATION. In the event the Consultant, at any time during its
association with the Client, will be guilty of gross negligence, intentional
misconduct or intentional misrepresentation, such negligence, misconduct or
misrepresentation will be deemed an immediate breach of this Agreement. Upon
such breach, or any other breach of this Agreement by the Consultant, this
Agreement will terminate immediately upon written notice by the Client, and the
Consultant will not be entitled to claim any compensation for damages for, in
respect of, or by reason of such termination.
3
9. PROPRIETARY INFORMATION. The customers, business, products, technology,
business connections, customer lists, procedures, operations, techniques and
other aspects of the business of the Client are established at great expense and
protected as confidential information and trade secrets and provide the Client
with a substantial competitive advantage of selling its products. The Consultant
will have access to, and be entrusted with, trade secrets, confidential
information and proprietary information, and the Client would suffer great loss
and injury if the Consultant would disclose this information or use it to
compete with the Client. Consequently, the Consultant agrees that during its
relationship with the Client, and from then on, it will not, within the
geographic territory encompassed by the business of the Client at the
termination of that relationship, directly or indirectly, either individually or
as an employee, agent, partner, shareholder, or in any other capacity, use or
disclose, or cause to be used or disclosed, any trade secret, confidential
information or proprietary information acquired by the Consultant during its
relationship with the Client.
10. INDEMNIFICATION. The Consultant agrees to defend, indemnify, and hold the
Client harmless from any and all liabilities, losses, costs, damages, penalties
and any other expenses including attorneys fees arising directlv or indirectly,
either from the Consultant's acts or omissions or the Consultant's breach of any
obligation imposed or sought to be imposed by or according to this Agreement.
The Client will not be liable to the Consultant, or to anyone who may claim any
right due to a relationship with the Consultant, for any acts or omissions by
the Consultant in the performance of this Agreement or on the part of the
employees or agents of the Consultant. The Consultant will indemnify and hold
the Client free and harmless from any obligation, cost claim, judgment,
attorneys, fees, and attachments arising from, growing out of, or in any way
connected with the services rendered to the Client under the terms of this
Agreement.
11. GENERAL PROVISIONS
11.1 ASSIGNMENT. Except as set forth in this section, neither this Agreement nor
any rights under this Agreement, in whole or in part, will be assignable or
otherwise transferable by either party without the express written consent of
the other party. Any attempt by either party to assign any of its rights or
delegate any of its duties under this Agreement without the prior written
consent of the other party will be null and void. Subject to the above, this
Agreement will be binding upon and take effect for the benefit of the successors
and assigns of the parties to this Agreement.
11.2 WAIVER, AMENDMENT, MODIFICATION. No waiver, amendment or modification,
including those by custom, usage of trade, or course of dealing, of any
provision of this Agreement will be effective unless in writing and signed by
the party against whom such waiver, amendment or modification is sought to be
enforced. No waiver by any party of any default in performance by the other
party under this Agreement or of any breach or series of breaches by the other
party of any of the terms or conditions of this Agreement will constitute a
waiver of any subsequent default in performance under this Agreement or any
subsequent
4
breach of any terms or conditions of that Agreement. Performance of any
obligation required of a party under this Agreement may be waived only by a
written waiver signed by a duly authorized officer of the other party, that
waiver will be effective only with respect to the specific obligation described
in that waiver.
11.3 FORCE MAJEURE. Neither party will be deemed in default of this Agreement to
the extent that performance of its obligations, or attempts to cure any breach,
are delayed or prevented by reason of circumstance beyond its reasonable
control, including without limitation fire, natural disaster, earthquake,
accident or other acts of God ("Force Majeure"), provided that the party seeking
to delay its performance gives the other written notice of any such Force
Majeure within 15 days after the discovery of the Force Majeure, and further
provided that such party uses its good faith efforts to cure the Force Majeure.
If there is a Force Majeure, the time for performance or cure will be extended
for a period equal to the duration of the Force Majeure. This Article will not
be applicable to any payment obligations of either party.
11.4 SETTLEMENT OF DISPUTES
11.4.1 Each party acknowledges and agrees that, if there is any breach of this
Agreement, including, without limitation, unauthorized use or disclosure of
Confidential Information or other Information of the other party, the
non-breaching party will suffer irreparable injury that cannot be compensated by
money damages, and therefore, will not have an adequate remedy at law.
Accordingly, if either party institutes an action or proceeding to enforce the
provisions of this Agreement, such party will be entitled to obtain such
injunctive relief, specific performance, or other equitable remedy from a court
of competent jurisdiction as may be necessary or appropriate to prevent or
curtail any such breach, threatened or actual. These will be in addition to and
without prejudice to such other rights as such party may have in law or in
equity.
11.4.2 Any dispute, controversy, or claim arising out of or related to this
Agreement, or the creation, validity, interpretation, breach, or termination of
this Agreement will be referred to mediation before, and as a condition
precedent to, the initiation of any adjudicative action or proceeding, including
arbitration. The mediation will be held in Stuart, Florida. Either party may
demand mediation in writing, serving on the other party a statement of the
dispute, controversy, or claim, and the facts relating to it, in reasonable
detail. Furthermore, if within thirty (30) days after such demand, the parties
have not agreed upon a mediator and commenced mediation, the matter will be
referred to arbitration under Section 11.4.3. Furthermore, if, within forty-five
(45) days after such demand the matter has not been resolved to the satisfaction
of both parties, then the matter will be refeffed to arbitration under Section 1
11.4.3.
11.4.3 Any dispute, controversy, or claim arising out of or related to this
Agreement, or the creation, validity, interpretation, breach, or termination of
this Agreement that has not been resolved amicably among the parties by
mediation under Section 11.4.2 will be submitted to
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binding arbitration using the following procedure:
11.4.4 The arbitration will be held in ( Stuart, Florida), before a panel of
three arbitrators. Either party may demand arbitration in writing, serving on
the other party a statement of the dispute, controversy, or claim, and the facts
relating to it, in reasonable detail, and the arbitrator nominated by that
party.
11.4.5 Within thirty (30) days after such demand, the other party will name its
arbitrator, and the two arbitrators named by the parties will, within ten (10)
days, select a third arbitrator,
11.4.6 The arbitration will be governed by the Commercial Arbitration Rules of
the American Arbitration Association (the "AAA"), except as expressly provided
in this Article. However, the arbitration will be administered by any
organization mutually agreed upon by the parties. If the parties are unable to
agree upon the organization to administer the arbitration, it will be
administered by the AAA. The arbitrators may not amend or disregard any
provision of this section.
11.4.7 The expenses of arbitration will be borne by the party against whom the
decision is rendered, or apportioned in accordance with the decision of the
arbitrators if there is a compromise decision. Judgment upon any award may be
entered in any court of competent jurisdiction. All notices from one party to
the other relating to any arbitration under this Agreement will be in writing
and will be effective if given in accordance with Section 11.11 below.
11.5 CUMULATIVE RIGHTS. Any specific right or remedy provided in this Agreement
will not be exclusive but will be cumulative upon all other rights and remedies
set forth in this section and allowed under applicable law.
11.6 GOVERNING LAW. This Agreement will be governed by the laws of the State
Florida applicable to Agreements made and fully performed in the State of
Florida by Florida residents. Disputes not resolved by mediation or arbitration
will be heard in the appropriate federal or state courts located in Xxxxxx
County,Florida.
11.7 ENTIRE AGREEMENT. The parties acknowledge that this Agreement expresses
their entire understanding and agreement, and that there have been no
warranties, representations, covenants or understandings made by either party to
the other except such as are expressly set forth in this section. The parties
further acknowledge that this Agreement supersedes, terminates and otherwise
renders null and void any and all prior agreements or contracts, whether written
or oral, entered into between both parties.
11.8 COUNTERPARTS. This Agreement may be executed in multiple counterparts, any
one of which will be deemed an original, but all of which will constitute one
and the same instrument.
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11.9 ATTORNEY FEES. If either party is required to retain the services of any
attorney to enforce or otherwise litigate or defend any matter or claim arising
out of or in connection with this Agreement, then the prevailing party will be
entitled to recover from the other party, in addition to any other relief
awarded or granted, its reasonable costs and expenses (including attorneys'
fees) incurred in the proceeding.
11.10 SEVERABILITY. If any provision of this Agreement is found invalid or
unenforceable under judicial decree or decision, the remainder will remain valid
and enforceable according to its terms.
11.11 NOTICES. All notices, demands or consents required or permitted under this
Agreement will be in writing and will be delivered, sent by facsimile or mailed
certified return receipt requested to the respective parties at the addresses
set forth above or at such other address as such party will specify to the other
party in writing. Any notice required or permitted to be given by the provisions
of this Agreement will be conclusively deemed to have been received on the day
it is delivered to that party by U.S. Mail with Acknowledgment of Receipt or by
any commercial courier providing equivalent acknowledgment of receipt.
Captions and section headings used in this Agreement are for convenience
only and are not a part of this Agreement and will not be used in construing it.
We have carefully reviewed this Agreement and agree to and accept its terms
and conditions. We are executing this Agreement as of the day and year first
written above.
CONTRACTOR CLIENT
s/ Xxxxxxxxxx XxXxxxx s/ Xxxxxx XxXxxxx
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EXHIBIT A
CUSTOMER LIST
1. All of the Shipyards and Shipmanagement Companies worlwide.
2. All of the Above Ground Storage Facilities and companies servicing those
industries.
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EXHIBIT B
REPRESENTATIVE'S COMPENSATION
1. The Representative's compensation for work performed under this Agreement
will be as follows: The Representative will be entitled to a total commission
for each individual sale of the Products arranged solely or jointly through the
Representative equal to 2 % percent of the net invoice of each sale. The
Representative will be paid a pro rata portion of each partial or total
payment(s) made by a customer on any individual sale equal to the applicable
commission percentage provided above.
The term "net invoice price" will mean the total invoice price that the
sale is invoiced to the customer, but excluding shipping and mailing costs,
taxes, insurance, any allowances or discounts granted to the customer and all
charges for installation or instruction.
1.1 The Client will pay to the Representative a weekly draw towards the above
fee of $1,500.00 for the period 4-2-98 thru 12/31/98. Increasing to $2,000 per
week beginning 1/1/99 thru 12/31/99. The total amount of the draw will be
deducted from the fee paid above at the end of each year.
2. There will be deducted from any sums due the Representative:
2.1 An amount equal to commissions previously paid or credited to the
Representative on sales where all or substantially all of the consideration
relating to that has since been returned to the customer or in the event only a
portion of such consideration has since been returned to the customer or
allowances have been credited to the customer by the Company, the pro rata
amount of previously paid or credited commissions on such returns or allowances.
2.2 A pro rata amount of commissions previously paid or credited to the
Representative on sales where less than the total purchase price of the Products
is ultimately paid by the customer, whether by reason of the customers
bankruptcy, insolvency or for any other reason whatsoever, in the Company's
judgment, renders the account uncollectible in whole or in part, in which event,
if any sums are later realized upon the uncollectible account, the Company will
pay the Representative the percentage of comniission applicable to the amount of
the actual collection.
3. When an order received by the Company through the Representative has been
influenced by another of the Company's sales representatives, or the Product is
to be delivered outside of the Representative's business area, the Company may,
in its sole discretion, but will not be required to, designate a commission
split between the Representative and any one or more other authorized sales
representative(s), as the case may be. Any such commission split may be
discussed with the sales representatives involved, but the Company will make any
decision in its own sole discretion, and any such decision will be final.
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