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Exhibit 10.6
SALES AGENCY AGREEMENT
THIS AGREEMENT is made as of the 19th day of September 1999, by and
BETWEEN; Xxxxxx Resources Limited. ("PRINCIPAL") whose principal business
address is located at 000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxx X0X IL5
AND
TECHNOLOGY DEVELOPMENT SERVICES LTD. ("AGENCY") whose principal business
address is located at Management International Xxxx. Xxxx Xxx, Xxxxxx, X.X.
X-0000 Nassau, the Bahamas
WHEREAS, THE PARTIES HAVE MUTUALLY AGREED TO ENTER INTO AN EXCLUSIVE SALES
AGENCY AGREEMENT FOR THE DISTRIBUTION & MARKETING OF "SUPERFIL" SOLELY TO THE
PLASTIC/POLYMER INDUSTRY WORLDWIDE
NOW THEREFORE, in consideration of the parties, it is agreed:
1. EXCLUSIVE REPRESENTATION:
Principal grants to Agency the exclusive right to act as Principal's
representative, to solicit orders for the Principal's sole industrial
mineral coined "Superfil" from all segments of the plastic/polymer
industries including but not limited to produces, manufacturers,
compounders, molders, and fabricators.
Agency under the terms of this agreement and upon the signing of this
agreement has the world distribution rights of Superfil.
(exclusions if any, are certain accounts in the plastic/polymer
industry that the agent at his own discretion may not wish to
solicite) Principal must receive written approval from the Agent prior
to solicitation of the client.
2. SALES POLICIES:
The prices, charges and terms of sale of the Principals products
("Sales Policies") shall be established by the Principal. The Sales
Policies shall be those currently in effect and established from time
to time by the Principal in its price books, bulletins, and other
authorized releases. Written notice of each Sales Policy change shall
be given by the Principal to the Agency at least ninety (90) days in
advance of such change. Agent shall in turn establish the selling
prices of the industrial mineral coined "Superfil" "Polymer Grade"
Sales will be based on US dollars. Agent will be solely responsible
for invoicing which will be under it's registered trade name.
3. ORDERS AND COLLECTIONS:
Orders for shipped products solicited by the Agency shall be the full
responsibility of the Agent. All invoices in connection with orders to
the Territory shall be rendered by the Principal direct to the Agent
and full responsibility for all collections and bad debts rests with
the Agent. The Principal agrees to refer to the Agency for attention
all inquiries concerning the Principal's product received by any of
Agents clients or from any other source or by any means whatsoever
from the Territory or for shipment of products into the territory.
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DUTIES:
The Purpose of this Agreement is to promote orders and reorder of
Principal's products and services in the Territory and the long term
goodwill of the Agency. The Agency agrees to diligently and faithfully
work the Territory in an endeavour to secure business for the
Principal and use its best efforts to promote Principal's products.
Principal will provide product training to Agency staff and use its
best efforts to perform and provide its products in a fit,
merchantable, workmanlike and marketable manner, provide marketing
support for the sales effort of the Agency and protect and promote
Agency-customer relationships within the territory.
5. RELATIONSHIP CREATED:
The Agency is not an employee of the Principal for any purpose
whatsoever, but is an independent contractor. Principal is interested
only in the results obtained by the "Agency", who shall have sole
control of the manner and means of performing under this Agreement.
Principal shall not have the right to require Agency to do anything
which would jeopardize the relationship of independent contractor
between Principal and Agency, unless otherwise agreed in writing.
Agency shall be responsible for Agency's taxes. All expenses and
disbursements incurred by Agency in connection with performance by
Agency or Agency's sales activities shall be borne wholly and
completely by Agency. Agency does not have, nor shall Agency hold
itself out as having any right, power or authority to create any
contract or obligation, express or implied, on behalf of, in the name
of, or binding on the Principal unless Principal shall consent thereto
in writing, excepting to solicit orders as the same are more
particularly defined in this Agreement. Agency shall have the right to
appoint and shall be solely responsible for Agency's own sub-agents,
salespersons, employees, agents and representatives who shall be at
Agency's own risk, expense and supervision and shall not have any
claim against the Principal for compensation or reimbursement unless
otherwise agreed to in writing between the parties. Principal shall
not during the term of this Agreement or for one year after
termination thereof engage, hire or employ Agency's sub-agents,
salesperson, employees, representatives or agents unless otherwise
agreed to be Agency. Neither party shall at any time make
representations which are outside the scope of this agreement, unless
agreed to in writing by both parties. On termination of the Agency's
right to solicit orders for new business for the Principal, the Agency
shall promptly return to the Principal all promotional material, order
forms and supplies provided by the Principal to the Agency prior to
termination.
6. COMMISSION:
The Agency's commission rate is 15% of the net product sold, excluding
transportation costs. Five percent (5%) of commission will be held
back by the company to purchase stock options at a discount not to
exceed 25% of the current market value. In addition the agent shall
receive as bonus company stock options at a discount again not to
exceed 25% of the market value. Amount of stock options are to be
determined based on the volume of superfil sold over an established
time period agreeable to both parties in Section 8.
6.1. Commissions are earned by the Agency on all "accepted orders"
solicited within and/or delivered to the Territory, whether the orders
are sent in by the Agency, received by the Principal by the mails,
taken at the Principal's place of business, or otherwise. The
Principal has the option of accepting or rejecting any order solicited
within the Territory or any order for delivery to the Territory,
except that an order will be considered an accepted order for the
purpose of commissions, unless the Principal does not ship and
notifies the Agency in writing of the order or orders rejected by the
Principal within thirty (30) days of the submission of the order to
the Principal whether submitted by the Agency, a customer or through
some other source. If the order is submitted by mail, the order will
be considered accepted, unless the Principal does not ship and
notifies the Agency in writing of the Principal's rejection of the
order within thirty (30) days of the mailing of such order by the
Agency or otherwise to the Principal. All commissions payable to the
Agency hereunder shall be due and payable to the Agency on or before
the twentieth (20th) day of the month immediately following invoicing.
In the event of termination of this Agreement by either party, the
Agency shall be paid commissions on all orders for orders deliveries
to the Territory which are substantially
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attributable in whole or in part to activities or services performed
prior to the effective date of termination, regardless of the shipment
and invoice date, except in the event of a "for cause termination" under
Paragraph 7.1 in which event Commission obligation is limited to
shipments made by Principal prior to the effective date of termination.
Purchasing Price:
The principal will sell his product to the marketer for .13c a pound US
until 12/31/2001. Delivery locations, packaging and labeling will be
established by marketer. Shipments to customers will be made according to
industry standards by principal.
8. Terms:
This Agreement shall continue in force and effect for one (2) year period
and thereafter from year to year based upon the Agent selling no less
than one thousand tons of Superfil per annum and thereafter. This
agreement will not exceed twenty-one (21) years unless renewed thereafter
in writing by the parties) unless the first to occur of the following
events, at which time the Agency's right to solicit new business shall
terminate:
9. Product & Product Availability:
Agent shall have first call on and first right of refusal on inventories.
All product samples shall be provided by the Principal at no cost to the
Agent. Specifications for the said product shall be in accordance with
industry and governmental standards and specifications. Should any
specification changes be required by Marketer, principal will do
everything possible to effectively meet said changes at the lowest
possible cost increment.
10. For Cause Termination:
10.1 Commission of a felony by either party in the course of performance of
the Agreement shall entitle the other to effect immediate termination
upon the giving of written notice.
10.2 The election of one party (the "aggrieved party") to terminate this
Agreement upon (1) the actual breach or actual default by the other party
in the reasonable performance of the defaulting party's obligations and
duties under this Agreement and (2) the failure of the defaulting party
to cure the same within 30 days (the "cure period") after receipt by the
defaulting party of a good faith written notice from the aggrieved party
specifying such breach or default and (3) provided that the defaulting
party has not cured the default and the aggrieved party may then give
written notice to defaulting party of his or its election to terminate
ten (10) days after expiration of the cure period.
11. General Provisions:
11.1 This Agreement may be modified or amended in whole or in part from time
to time only by the mutual written agreement signed by all parties and
delivered by each to the other prior to the effective date of such modification
or amendment. Principal shall save Agency harmless from and against and
indemnify Agency for all liability, loss, costs, expense or damages whatsoever
caused by reason of any of Principal's products (whether or not defective or
covered by warranty) and any act or commission of Principal or Principal's
customers or vendees, including but not limited to any injury (whether to body,
property of personal or business character or reputation) sustained by any
person or organization or to any person or to property whether from breach of
warranty, products liability, infringement or any patent rights or other rights
of third parties and whether from any violation of municipal, state or federal
laws or regulations governing the products or services or their sale which may
result from the sale or distribution of the products by the Agency, and
including any act by the Agency related to the design, alteration,
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modification or change of the product supplied by the Principal, except as
to modification or change caused by or assumed in writing by Agency.
Principal agrees to include Agency as an insured in all policies of
Principal which provide protection or indemnity against any liability to
customers, consumers or third parties as to any liability or
responsibility above referred to. All provisions of this Agency Agreement,
including the provisions of this Paragraph 8 shall be subject to and shall
be enforced and construed pursuant to the laws of the Country where the
Agency's principal office is located, as set forth below.
11.2 If and in the event any provision of this Agreement is void or voidable
under any applicable local or state law, such void or voidable provision
shall not affect the balance of the Agreement which shall remain fully
enforceable as if said void or voidable provision had been deleted by
mutual consent of the parties.
12. NOTICES:
Any notice, demand or request required or permitted to be given hereunder
shall be in writing and shall be deemed effective twenty-four (24) hours
after having been deposited in the mail, postage prepaid, registered are
certified and addressed to the addressee at its main office, as set forth
below. Any party may change its address for purposes of this Agreement by
written notice given in accordance herewith.
DATE: September 29, 1999
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PRINCIPAL: AGENCY: [XXXXXX RESOURCES LIMITED -
------------------------ CANADA SEAL]
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BY: /s/ Xxxxxx Xxxxxxxxx BY: /s/ Xxxxxxx X. Xxxxxxx
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TITLE: President & CEO TITLE: President
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ADDRESS OF PRINCIPAL'S MAIN OFFICE: ADDRESS OF AGENCY'S FIELD OFFICE:
000 Xxxxxxxx Xxxx 00 Xxxxxxx Xxxxx, Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxx New York, 10308
P3Y 1L5
