EXHIBIT 10.1 International Distributor Agreement
International Distributor Agreement
This Authorized International Distributor Agreement (the "Agreement") is made
between Xxxxx Xxxxxxx, business woman, of 0000 Xxxxxx Xxxxxx, Xxxxxxx, X.X.,
Xxxxxx X0X 0X0 (hereinafter referred to as "XXXXXXX" ) and Dura Track
Enterprises, Inc., a company duly incorporated in the State of Nevada, of
Suite 6-D, 0000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx, XXX 00000 (hereinafter
referred to as "DT").
a) XXXXXXX owns certain injection molds, including the products listed in
Exhibit A hereto (hereinafter referred to as "XXXXXXX Products"). This
Agreement pertains to XXXXXXX Products as defined in this Agreement and to
any other products that are now, or may hereafter be, published, manufactured
or distributed by XXXXXXX.
b) XXXXXXX Products are distributed under trademarks and trade names having
a valuable reputation and goodwill that belong exclusively to XXXXXXX.
c) DT Products are distributed under trademarks and trade names having a
valuable reputation and goodwill that belong exclusively to DT.
d) XXXXXXX and DT recognize that in order for XXXXXXX Products and DT
Products to compete effectively in the marketplace, it is believed necessary
that they be marketed through Dealers (as that term is defined herein). DT
and XXXXXXX further recognize that successful marketing of XXXXXXX Products
and DT Products depend upon the ability of DT to select and maintain Dealers
to provide XXXXXXX Products and DT Products, and to provide a high level of
support, training and assistance to such Dealers in marketing XXXXXXX
Products and DT Products.
e) XXXXXXX and DT desire that DT act as an independent exclusive distributor
of XXXXXXX Products and DT Products whereby XXXXXXX shall be paid 20% (twenty
percent) of the gross proceeds for DT'S acquiring a right to distribute
XXXXXXX Products under the terms and conditions set forth below.
f) Both XXXXXXX and DT warrant that each of the signatories each have the
due authority and capacity to represent their respective organization in this
Agreement. XXXXXXX further warrants that it is the owner or exclusive
licensee of all intellectual property and proprietary rights in and has the
right to grant the DT the rights contemplated in the Agreement.
g) NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants and agreements hereinafter set forth, XXXXXXX and DT agree as
follows:
2) DEFINITIONS
Whenever used in this Agreement, the following terms shall have the following
specified meanings:
a) "Dealer" means the Person or organization to which DT promotes and sells
XXXXXXX Products and/or DT Products, and who then promotes and sells to end
customers. DT may classify a sub-distributor as a Dealer or visa-versa.
b) "DT Documentation" means any and all user licenses, licenses, manuals,
specifications, user guides and other documentation regarding the DT Drapery
Hardware prepared by or on behalf of DT in connection with the DT Hardware.
c) "DT Products" means DT drapery hardware (but does not include any other
items which DT is precluded from distributing to or through DT by virtue of
any existing license or distribution agreement with any other Person.)
d) "DT Hardware" means retail/wholesale drapery hardware systems and
individual components as set forth in Schedule A. DT Hardware includes all
products custom developed by XXXXXXX at the request of DT. XXXXXXX, at all
times, remains the sole owner of the molds and products.
e) "XXXXXXX Documentation" means any and all manuals, specifications, user
guides and other documentation pertaining to the XXXXXXX Hardware prepared by
or on behalf of XXXXXXX in connection with the XXXXXXX Hardware.
f) "XXXXXXX Products" means XXXXXXX Hardware and XXXXXXX Documentation, but
does not include any drapery hardware, or documentation or other items which
XXXXXXX is precluded from distributing to or through DT by virtue of any
existing license or distribution agreement with any other Person.
h) "XXXXXXX Hardware" means retail/wholesale drapery hardware systems and
individual components as set forth in Schedule A produced and/or distributed
by XXXXXXX which may be modified or amended from time to time.
i) "Market" shall mean the retail/wholesale drapery hardware.
j) "Person" means an individual, corporation, partnership, trust,
association, entity, governmental authority of any other person.
k) "Territory" are those countries, regions and/or languages described in
Exhibit B, attached to this Agreement.
3) Basic Transaction
Subject to the terms and conditions of this Agreement, DT wishes to obtain
exclusive marketing to all drapery hardware components owned by XXXXXXX and
right to use XXXXXXX moulds to produce such products. DT shall pay XXXXXXX a
royalty of 20% (twenty percent) of the gross sales amount with an annual
minimum royalty of $50,000 (fifty thousand dollars) in legal US currency.
4) Appointment as Authorized XXXXXXX Distributor
a) Exclusive Appointment
Subject to the terms and conditions of this Agreement, XXXXXXX hereby
appoints DT, and DT hereby accepts such appointment, as an independent,
exclusive distributor of XXXXXXX Products in the Market for the Territory as
set forth in Exhibit B to this Agreement. Subject to the terms and conditions
of this Agreement, XXXXXXX hereby appoints DT, and DT hereby accepts such
appointment, as an independent, exclusive distributor of DT Products in the
Territory.
b) Nature of Distribution
DT'S appointment only grants to DT a right to distribute XXXXXXX Products and
DT Products to DT'S Dealers, end users and customers, and does not transfer
any title or claim of ownership in any XXXXXXX Product to DT, except as
provided in this license.
c) Limitations
DT's appointment is limited to distribution of XXXXXXX Products and DT
Products to Dealers, end users and customers in the Market for the Territory.
DT may appoint a Dealer(s) or other Person(s) to distribute XXXXXXX Products
and/or DT Products in the Territory.
d) Hardware Distribution License
XXXXXXX hereby grants to DT, and DT hereby accepts, subject to the terms and
conditions of this Agreement, the exclusive right to manufacture, copy,
distribute, sell, market, lease, rent, operate, service and otherwise
commercialize and exploit the XXXXXXX Product in the Market, directly and
through Dealers, in the Territory.
e) Obligations of DT
DT warrants and represents that DT has and will maintain, the capacity,
facilities and personnel necessary to carry out its obligations under this
agreement and in particular that:
i) DT will conduct business in a manner that reflects favorably on the
goodwill and reputation of XXXXXXX.
ii) DT will avoid deceptive, misleading or unethical practices detrimental
to XXXXXXX, XXXXXXX Products, Dealer(s) or the public, including but not
limited to making representations, warranties or guarantees to customers or
to the trade with respect to the specifications, features or capabilities of
XXXXXXX Products that are inconsistent with the literature distributed by
XXXXXXX, including all warranties and disclaimers contained in XXXXXXX
Documentation.
iii) DT will use its reasonable efforts to market XXXXXXX Products both
vigorously and aggressively to Dealers within the Territory and to distribute
XXXXXXX Products within the Territory.
iv) DT will not market XXXXXXX Products or DT Products outside the Territory
without the prior express written consent of XXXXXXX, which consent must be
received from XXXXXXX prior to any sale of XXXXXXX Product or DT Product.
v) DT shall be responsible for translating XXXXXXX Product advertising and
promotional materials into the languages of the Territory.
vi) DT will authorize and maintain Dealers that it believes have the
financial capacity, facilities, technical capacity and desire to competently
market and support XXXXXXX Products.
vii) Prior to engaging in any transaction with a Dealer involving any
XXXXXXX Products and/or DT Products, DT and the Dealer shall execute an
agreement. DT will ensure that such agreement with the Dealer will include
language necessary to enforce any sections of this Agreement which pertain to
a Dealer's distribution of XXXXXXX or DT Products.
DT shall ensure direct and indirect compliance with this Agreement by itself
and all Dealers obtaining the agreement of such parties for the benefit of DT
and XXXXXXX to be bound by these sections and to obtain such covenants from
any further Dealers within all agreements with such parties.
viii) DT will not sell, giveaway, loan or otherwise provide XXXXXXX Products
and/or DT Products to any Dealer or organization that engages in illegal
trade practices.
ix) DT will not to add to, delete or otherwise vary any of the terms and
conditions of this Agreement without the prior written consent of XXXXXXX.
x) DT will not distribute any XXXXXXX Products or DT Products under any
trade names or trademarks other than those employed by XXXXXXX with respect
thereto, except where agreed to in writing by XXXXXXX. DT may distribute
XXXXXXX Products or DT Products where:
(a) All XXXXXXX Products containing or labeled with trademarks, trade names
or copyrights owned or managed by XXXXXXX will be manufactured under the
management of XXXXXXX to strict quality assurance of XXXXXXX.
(b) All DT Products containing or labeled with trademarks, trade names or
copyrights owned or managed by XXXXXXX will be manufactured under the
management of XXXXXXX to strict quality assurance of XXXXXXX.
(c) All DT Products manufactured solely containing or labeled with
trademarks, trade names or copyrights owned or managed by DT will be
manufactured under the management of XXXXXXX to strict quality assurance of
XXXXXXX, and no such trademarks, trade names or copyrights may be used by
XXXXXXX without prior written approval of DT. Said manufacturer and
manufacturer's terms and conditions shall be approved by DT.
(d) Should DT desire XXXXXXX to develop a new product or modify the current
packaging on behalf of the DT, said development and modifications will be
subject to terms and conditions as the parties may agree to as set out in a
separate contract.
xi) DT shall comply with XXXXXXX programs for in-warranty replacement and
post-warranty support for XXXXXXX Products and for DT Products which contain
any XXXXXXX trademarks, trade names or copyrights.
xii) DT will comply with applicable international, national, state, regional
and local laws and regulations in performing its duties hereunder and in any
of its dealing with Dealers and with respect to XXXXXXX Products and DT
Products.
xiii) DT will distribute XXXXXXX Products and DT Products with all
packaging, warranties, and disclaimers intact as shipped from XXXXXXX, and
will instruct each of its Dealers as to the nature and terms of such as
applicable to the XXXXXXX Hardware and/or DT Hardware.
xiv) DT acknowledges that XXXXXXX'X export of the XXXXXXX Products and DT
Products may be subject to compliance with the Export Administration Act
Regulations of the Department of Commerce of the United States, as amended,
and other export controls of the United States ("Export Laws"), which
restrict the export and re-export of drapery hardware ("Direct Product" as
used hereafter means the immediate product, including processes and services,
derived from the use of XXXXXXX Products and DT Products). DT agrees and
shall cause each of its Dealers, employees, agents, representatives and
assignees to agree not to export or re-export any XXXXXXX Products and/or DT
Products to any prohibited country, as such is defined by the Export Laws,
provided XXXXXXX has advised DT which countries are prohibited countries. DT
agrees to indemnify XXXXXXX against any claim, demand, action, proceeding,
investigation, loss, liability, cost and expense, including, without
limitation attorney's fees, suffered or incurred by XXXXXXX and arising out
of or related to any violation (whether intentional or unintentional) by DT
its employees, agents, representatives and Dealers of any of the warranties
or covenants of this Section 4(e)(xiii).
xv) DT acknowledges that exclusive and non-exclusive distribution is subject
to all current and future OEM (Original Equipment Manufacturer) or Bundle
agreements executed by XXXXXXX. The identity of the other parties, and all
discussion and forms of agreements are specifically excluded from this
agreement.
xvi) DT will advise XXXXXXX promptly concerning any market information that
comes to DT'S attention regarding XXXXXXX Products or DT Products, XXXXXXX'X
market position or the continued competitiveness of XXXXXXX Products or DT
Products in the marketplace.
xvii) Advertising and marketing of XXXXXXX Products and DT Products in the
Territory will be the sole responsibility of the DT. DT may not advertise or
promote XXXXXXX Products in any form or media, including all print and
electronic medium, which may be deemed in the reasonable opinion of XXXXXXX,
taking into account cultural difference in the Territory, inappropriate and
subject XXXXXXX to ridicule, scandal reproach, scorn or degrade.
5) Inspections, Records and Reporting
a) Reports
DT will provide to XXXXXXX, within one hundred and twenty (120) days of
signing this Agreement and on an annual basis thereafter, written reports, in
electronic format, showing:
i) A summary of the marketing plan relating to XXXXXXX Products and DT
Products, including summary of advertising, public relations and other
promotional efforts completed or in progress by the DT.
ii) Any other information XXXXXXX reasonably requests relating to sales made
or forecasted sales of XXXXXXX Products and DT Products.
b) Notification
DT will notify XXXXXXX in writing of any claim or proceeding involving
XXXXXXX Products or DT Products within thirty (30) days after DT learns of
such claim or proceeding. DT will also report promptly to XXXXXXX all claimed
or suspected product defects.
c) Records
DT will maintain, for at least two (2) years after termination of this
Agreement, its records, contracts and accounts relating to distribution of
XXXXXXX Products and DT Products and will permit examination thereof by
authorized representatives of XXXXXXX at all reasonable times at XXXXXXX'X
sole expense.
6) Trademarks, Trade Names and Copyrights
a) During the term of this Agreement, DT is authorized by XXXXXXX to use the
trademarks XXXXXXX uses for XXXXXXX Products in connection with DT'S
advertisement, promotion and distribution of XXXXXXX Products and DT
Products. Such usage is subject to approval by XXXXXXX before use of said
trademark.
b) As both a covenant by DT and a condition of XXXXXXX'X authorization of
DT'S distribution, DT will include on each copy of the XXXXXXX Products
and/or DT Products that it distributes, and on all containers and storage
media therefore, all trademark, copyright and other notices of proprietary
rights included by XXXXXXX on such XXXXXXX Products and/or DT Products unless
such products are manufactured under the DT'S trademarks solely. DT agrees
not to alter, erase, deface or overprint any such notice on anything provided
by XXXXXXX.
c) DT has paid no consideration for the use of XXXXXXX'X trademarks, logos,
copyrights, trade secrets, trade names or designations, and nothing contained
in this Agreement shall give DT any interest in any of them. DT acknowledges
that XXXXXXX owns and retains all proprietary rights in all XXXXXXX Products
and DT Products, and agrees that it will not at any time during or after this
Agreement assert or claim any interest in or do anything that may adversely
affect the validity or enforceability of any trademark, trade name, trade
secret, copyright or logo belonging to or licensed to XXXXXXX (including,
without limitation, any act, or assistance to any act, which may infringe or
lead to the infringement of any copyright in the XXXXXXX Products), except as
provided for herein. DT agrees not to attach any additional trademarks, logos
or trade designations to any XXXXXXX Product or DT Product, unless such DT
Product is manufactured without the use of any XXXXXXX trademarks, trade
names or copyrights.
d) Upon expiration or termination of this Agreement, DT will forthwith cease
all display, advertising and use of all XXXXXXX names, marks, logos and
designations.
e) DT agrees to use reasonable efforts to protect XXXXXXX'X proprietary
rights and to cooperate fully in XXXXXXX'X effort to protect its proprietary
rights. Such efforts do not however include any payment for enforcement of
such rights.
f) DT understands and agrees that XXXXXXX will suffer irreparable harm in
the event that DT fails to materially comply with any of its obligations
pursuant to this Section 6, and that monetary damages in such event would be
substantial and inadequate to compensate XXXXXXX. Consequently, in such event
XXXXXXX shall be entitled, in addition to such monetary relief as may be
recoverable by law, to such temporary, preliminary and/or permanent
injunctive relief as may be necessary to restrain any continuing or further
material breach by DT, without showing or proving any actual damages
sustained by XXXXXXX.
g) DT shall promptly report to XXXXXXX any known breach by any Person, of
the Agreement, of which DT becomes aware, and of the known making by any
Person of any unauthorized copy of any XXXXXXX Products. XXXXXXX shall have
the right, but not the obligation, to pursue any of all such infringements.
h) XXXXXXX agrees that all trade names and trademarks owned by DT and used
on XXXXXXX Products and/or DT Products shall remain the property of DT and
may not at any time during or after termination of this agreement be used by
XXXXXXX in connection with XXXXXXX Products or otherwise.
7) Assignment
a) DT is appointed an authorized XXXXXXX distributor because of DT'S
commitments in this Agreement, and further because of XXXXXXX'X confidence in
DT, which confidence is personal in nature. DT may assign this Agreement, in
whole but not in part, to corporations or other business entities controlled,
directly or indirectly, where there is a minimum 51% (fifty-one percent)
controlling interest by DT. Such assignment must receive prior written
approval by XXXXXXX and such approval cannot be unreasonably withheld. Such
assignment is automatically revoked and returned to DT where the controlling
interest, DT, in the assignee, is reduced below 51% (fifty-one percent).
b) DT and/or any and all assignees may not delegate its duties hereunder
without the prior written consent of XXXXXXX and any attempted delegation
without the required consent shall be void. Further, any assignment shall not
relieve DT from its duties and obligations under this Agreement.
c) XXXXXXX may assign this Agreement to a subsidiary or entity controlling,
controlled by or under common control with XXXXXXX. Written notice will be
made to DT in the event that XXXXXXX assigns this Agreement.
d) The provisions hereof shall be binding upon and inure to the benefit of
the parties, their successors and permitted assigns.
8) Duration and Termination of Agreement
a) Term
This Agreement is for a term as defined in Exhibit B from the effective date
as outlined in Section 14(d). Nothing contained herein shall be interpreted
as requiring either party to renew or extend this Agreement. Notwithstanding
the provisions of this Section 8(a), or any other provisions of this
Agreement, this Agreement may be terminated prior to the expiration of its
stated term as set forth below.
b) Renewal Term
This Agreement may be renewed for a renewal term as defined in Exhibit B. The
option to renew this Agreement must be agreed in writing by both parties
sixty (60) days prior to the expiration of its stated term. All terms of this
Agreement, except financial, shall remain in effect during any renewal terms,
unless agreed to in writing by both parties to this Agreement.
c) XXXXXXX Termination for Cause
XXXXXXX may terminate this Agreement at any time prior to the expiration of
its stated term in the event that DT fails to perform any material
obligation, warranty, duty or responsibility or is in default with respect to
any term or condition under this Agreement and such failure or default
continues unremedied for a period of thirty (30) days after notice of failure
or default from XXXXXXX.
d) Automatic Termination
This Agreement terminates automatically, with no further act or action of
either party, if a receiver is appointed for DT or its property, DT makes an
assignment for the benefit of its creditors, any proceedings are commenced
by, for or against DT under any bankruptcy, insolvency or debtor's relief
law, or DT is liquidated or dissolved.
e) Effect of Termination
i) Upon termination of this Agreement:
ii) XXXXXXX, at its option, may reacquire any or all XXXXXXX Products and/or
DT Products then in DT'S possession at DT'S cost.
iii) For a period of two (2) years after the date of termination, DT shall
make available to XXXXXXX for inspection and copying all books and records of
DT that pertain to DT'S performance of and compliance with its obligations,
warranties and representations under this Agreement.
iv) DT shall cease using any XXXXXXX trademark, logo or trade name, and
XXXXXXX shall cease any manufacturing or other use of the DT'S trademarks,
logos or trade names.
f) No Damage for Termination
i) NEITHER XXXXXXX NOR DT SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY
KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE
TERMINATION OR EXPIRATION OF THIS AGREEMENT. Neither XXXXXXX nor DT shall be
liable to the other on account of termination or expiration of this Agreement
for reimbursement or damages for loss of goodwill, prospective profits or
anticipated orders, or on account of any expenditures, investments, leases or
commitments made by either XXXXXXX or DT or for any other reason whatsoever
based upon or growing out of such termination or expiration.
ii) DT acknowledges and agrees that (1) DT has no expectation and has
received no assurances that its business relationship with XXXXXXX will
continue beyond the stated term of this Agreement or its earlier termination
in accordance with this Section 8, that any investment by DT in the promotion
of XXXXXXX Products and/or DT Products will be recovered or recouped, or that
DT shall obtain any anticipated amount of profits by virtue of this
Agreement; and (2) DT shall not have or acquire by virtue of this Agreement
or otherwise any vested, proprietary or other right in the promotion of
XXXXXXX Products or in any goodwill created by its efforts hereunder.
iii) THE PARTIES ACKNOWLEDGE THAT THIS SECTION 8(f) HAS BEEN INCLUDED AS A
MATERIAL INDUCEMENT FOR XXXXXXX AND DT TO ENTER INTO THIS AGREEMENT AND THAT
NEITHER XXXXXXX NOR DT WOULD HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE
LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.
g) Survival
XXXXXXX'X rights and DT'S obligations under Section 4(e)(ii) and 4(e)(x),
5(c), 6, 10, 11, 13 and 14 shall survive termination of this Agreement.
9) Relationship of the Parties
DT'S relationship with XXXXXXX during the term of this Agreement will be that
of an independent distributor. DT will not have, and will not represent that
it has, any power, right or authority to bind XXXXXXX, or to assume or create
any obligation or responsibility express or implied, on behalf of XXXXXXX or
in XXXXXXX'X name, except as herein expressly provided. Nothing stated in
this Agreement shall be construed as making DT and XXXXXXX partners, nor as
creating the relationships of employer/employee, franchiser/franchisee, or
principal/agent between the parties. In all matters relating to this
Agreement, neither DT nor its employees or agents are, or shall act as,
employees of XXXXXXX within the meaning or application of any obligations or
liabilities to XXXXXXX by reason of an employment relationship. DT shall
reimburse XXXXXXX for and hold it harmless from any liabilities or
obligations imposed or attempted to be imposed upon XXXXXXX by virtue of any
such law with respect to employees of DT in performance of this Agreement.
Payment to employees of DT employed or utilized by XXXXXXX are payable by DT
to the extent funds are available in DT.
10) Indemnification
a) Indemnification of XX
XXXXXXX agrees to defend, indemnify and hold DT harmless for any loss, damage
or liability for any claimed infringement of any U.S.A. patent right,
copyright and trade secrets, or other proprietary rights asserted by any
third person arising out of DT'S improper use of any XXXXXXX Products,
provided (1) that XXXXXXX is promptly notified in writing by DT of any such
claim against DT, (2) that DT authorizes XXXXXXX to assume sole control over
the defense of any such claim thereafter, together with the right to settle
or compromise such claim, and (3) that DT makes available to XXXXXXX such
information, assistance and authority as may be reasonably requested by
XXXXXXX in order to enable XXXXXXX to defend any such claim.
In the event any such claim is asserted, XXXXXXX shall have the right without
limitation, at its option either (a) to obtain such rights and/or licenses
from the claimant as may be necessary to enable DT to continue using and/or
marketing the XXXXXXX Products which are the subject of the claim, and/or (b)
to modify the XXXXXXX Products with respect to which such claim is asserted
so as to avoid further claimed infringement by such Person. XXXXXXX further
agrees to indemnify and hold harmless DT or any Dealer from and against any
and all liabilities, costs, damages and expenses (including legal costs)
arising out of or in connection with any issue for warranty.
b) No Combination Claims
Notwithstanding Section 10(a), XXXXXXX shall not be liable to DT for any
claim arising from or based upon the combination, operation or use of any
XXXXXXX Product or DT Product with equipment, data or programming supplied by
or not supplied by XXXXXXX, or arising from any alteration or modification of
XXXXXXX Products or DT Products.
c) Indemnification of XXXXXXX
XX agrees to indemnify XXXXXXX (including reasonable attorneys' fees and
costs of litigation) against and hold XXXXXXX harmless from any and all
claims by any other party resulting from DT'S improper acts (other than the
mere marketing of XXXXXXX Products), omissions or representations, regardless
of the form of action.
11) Disclaimer of Warranties; Limited Liability
a) Disclaimer of Warranties
TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS PROVIDED IN SECTION
11(b), ALL XXXXXXX HARDWARE AND DT HARDWARE IS DELIVERED "AS IS'' AND WITHOUT
EXPRESS OR IMPLIED WARRANTY OF ANY KIND BY EITHER XXXXXXX OR ANYONE ELSE WHO
HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF SUCH HARDWARE,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY,
NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
b) Limited Warranty
XXXXXXX warrants to DT that it shall fully and faithfully honor its
obligations to all users pursuant to its warranty agreement. Satisfaction by
XXXXXXX of its obligations pursuant thereto shall be XXXXXXX'X sole
liability, and DT'S sole remedy against XXXXXXX on account of any claim
relating to the quality or performance of any XXXXXXX Hardware and/or DT
Hardware, whether such claim shall be based upon principles of contract, or
warranty, negligence or other tort, breach of any statutory duty, or
otherwise. If for any reason XXXXXXX should fail to meet its obligations
pursuant hereto, XXXXXXX'X liability to DT nevertheless shall be limited to
the fee paid by DT to XXXXXXX with respect to the product or products with
respect to which any such claim is asserted.
c) Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL XXXXXXX BE LIABLE TO DT ON ACCOUNT OF ANY CLAIM
(WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER
TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, THE FAILURE OF
ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) FOR ANY
SPECIAL, CONSEQUENTIAL INCIDENTAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT
LIMITED TO LOST PROFITS, OR FOR ANY DAMAGES OR SUMS PAID BY DT TO THIRD
PARTIES, EVEN IF XXXXXXX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
d) DT Warranty
DT will make no warranty, guarantee or representation, whether written or
oral, on XXXXXXX'X behalf.
12) Failure of Trademark Protection
In the event XXXXXXX is unable to secure trademark registration in the
Territory, this Agreement shall continue in full force and effect and DT
shall make no claim whatsoever against XXXXXXX.
13) Confidentiality
DT acknowledges that in the course of performing its obligations hereunder it
will receive information which is confidential and proprietary to XXXXXXX. DT
agrees not to use such information except in performance of this Agreement
and not to disclose such information to third parties. XXXXXXX acknowledges
that over the term of the Agreement it will receive information which is
confidential and proprietary to the DT and XXXXXXX agrees not to use such
information except in performance of this Agreement and not to disclose such
information to third parties.
14) General
a) Waiver and Modification
No waiver or modification of the Agreement shall be effective unless in
writing and signed by the party against whom such waiver or modification is
asserted. Waiver by either party in any instance of any breach of any term or
condition of this Agreement shall not be construed as a waiver of any
subsequent breach of the same of any other term or condition hereof. None of
the terms or conditions of this Agreement shall be deemed to have been waived
by course of dealing or trade usage.
b) Notices
All notices and demands hereunder shall be in writing and shall be served by
personal delivery or by mail at the address of the receiving party set forth
in this Agreement (or at such different address as may be designated by such
party by written notice to the other party). All notices or demands by mail
shall be by certified or registered airmail, return receipt requested, and
shall be deemed complete upon receipt. If receipt of such notice or demand is
refused or a party has changed its address without informing the other, the
notice shall be deemed to have been given and received upon the fourteenth
(14th) day following the date upon which it is first postmarked by the postal
service of the sender's nation. All notices and demands hereunder will be in
the English language and will control when interpreting the notice or demand.
c) Attorney's Fee
In the event any litigation is brought by either party in connection with
this Agreement, the prevailing party in such litigation shall be entitled to
recover from the other party all the costs, attorney's fees and other
expenses incurred by such prevailing party in the litigation.
d) Effective Date
This Agreement shall become effective only after DT has signed it and it is
accepted by XXXXXXX, and its effective date shall be the date on which it is
signed by XXXXXXX.
e) Choice of Law, Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws
of the Province of British Columbia, Canada. The parties agree that any claim
asserted in any legal proceeding by one party against the other shall be
commenced and maintained in any provincial or federal court located within
the Province of British Columbia, having subject matter jurisdiction with
respect to the dispute between the parties. Both parties hereby submit to the
jurisdiction of such courts over each of them personally in connection with
such litigation, and waive any objection to venue in such courts and any
claim that such forum is an inconvenient forum. The English language version
of this Agreement controls when interpreting this Agreement.
f) Severability
In the event that any provision of this Agreement shall be held by a court or
other tribunal of competent jurisdiction to be unenforceable, such provision
will be enforced to the maximum extent permissible and the remaining portions
of this Agreement shall remain in full force and effect.
g) Force Majeure
XXXXXXX shall not be responsible for any failure to perform due to unforeseen
circumstances or to cause beyond XXXXXXX'X control, including but not limited
to acts of God, war, riot, embargoes, acts of civil or military authorities,
fire, floods, accidents, strikes, or shortages of transportation facilities,
fuel, energy, labor or materials.
h) Entire Agreement
This Agreement constitute the entire agreement between the parties pertaining
to the subject matter hereof, and supersedes in their entirety any and all
written or oral agreement previously existing between the parties with
respect to such subject matter.
i) Benefits of Agreement
The term of this Agreement are intended solely for the benefit of the parties
hereto. They are not intended to confer upon any third party the status of a
third party beneficiary. Except as otherwise provided for by this Agreement,
the terms hereto shall inure to the benefit of, and be binding upon, the
respective successors and assign of the parties hereto.
j) Titles and Headings
All titles and headings in this Agreement are for clarification and
assistance to the reader, and do not form a part of the interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date specified below.
XXXXXXX
Signature: /s/ Xxxxx Xxxxxxx
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Printed Name: Xxxxx Xxxxxxx
Date Signed: May 1, 2004
Dura Track Enterprises, Ltd.
Signature: /s/ Xxxxxx Xxxxxxx
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Printed Name: Xxxxxx Xxxxxxx
Date Signed: May 1, 2004
Effective Date: May 1, 2004
Exhibit A - Xxxxxxx Products
Products
Item No Quantity per Box Name Description
D15 500 End Lock Product is used to snap
on to the end of a hand
drawn drapery track for
two purposes. One, to
stop the glides on the
drapery track to not
slip off the end and
second, to provide a
fastener for the last
pin on the out side
edges of each drape.
D17 200 Wall Bracket Product is used to
fasten the drapery rod
to the wall above the
window. Once the
bracket is fastened the
"c" channel drapery
track snaps into the
bracket. Used for both
hand drawn and cord
drawn drapery tracks.
D21 200 Pairs End Pulley These components are
usually used in pairs
attached to the ends of
a cord drawn drapery
track. These components
service two purposes,
they have a set of
wheels that allow the
drapery cord to operate
smoothly and provide a
fastener for the last
pin on the out side
edges of each drape.
D23 200 Floor Pulley This component used for
cord drawn drapery
tracks and is either
fastened to the wall or
the floor. It contains
a wheel and is spring
loaded to help keep
tension on the
operating cord for the
drapery track.
D25 200 Fling Rod This component is used
with hand drawn drapery
tracks and is attached
to the leading glide or
fastener of the drapery
to allow hand closing
and opening of a drape.
D27 200 Pairs Master Glides These components are
usually used in pairs
for both hand drawn and
cord drawn drapery
tracks. The master
glides have overlapping
arms that allow the
draperies in the center
of a pair to overlap for
privacy.
Exhibit B - Territory and Respective Appointment ("Territory")
Territory
The World market
Term
The term of this Agreement shall be thirty-six (36) months from the Effective
Date.
Renewal Option
This Agreement may be renewed at the DT'S sole option for a subsequent term
of up to thirty-six (36) months.
