EXHIBIT 10.4 - Reseller Agreement
Wireless Security Video Monitoring(TM)-MommyTrack(TM)-Security Communicator(TM)
Patent Pending with the United States Patent & Trademark Office
Serial No: 60/403,164
THIS AGREEMENT is effective this first day of October, 2002, between CENUCO,
INC., a Florida corporation, with offices located at 0000 Xxxxxxxx Xxx., Xxxxx
000, Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter referred to as "Cenuco"), and
Worldwide Net, Inc., 000 Xxxxxx Xxxxxx Xxxx, 0xx xxxxx, Xxxxxxxxx, XX 00000
(hereinafter referred to as "Reseller").
1. SCOPE OF APPOINTMENT.
(A) Cenuco appoints the Reseller, on an exclusive basis, to sell, install
and promote the sale of Cenuco advanced digital video encoding security
servers, Controllers, transmission and recording systems, Communicators,
handheld viewing and cellular devices, and accessories as set forth on
the current Cenuco published price pages (hereinafter referred to as
"Products") to commercial, residential and government end-users within
the City of Philadelphia and surrounding suburbs.
(B) Reseller recognizes that all Cenuco business products will only be sold
directly to resellers. Leads derived from these sales calls will be made
available to closest Reseller. Consumer Products may be sold to any
customer, including direct sales to dealers or sales to Resellers for
resale.
(C) Cenuco appoints the Reseller, on a nonexclusive basis, to sell, install
and promote the sale of Cenuco advanced digital video encoding security
servers, Controllers, transmission and recording systems, Communicators,
handheld viewing and cellular devices, and accessories as set forth on
the current Cenuco published price pages (hereinafter referred to as
"Products") to commercial, residential and government end-users within
the Cities of Chicago, Pittsburgh, Boston and their surrounding suburbs.
2. ACCEPTANCE.
This agreement is not binding on Cenuco until it has been accepted in
writing by the signature of an authorized Cenuco representative. This is the
sole and exclusive manner of acceptance. Any other promise or act, including
a promise to ship or the prompt shipment of Product, shall not constitute
acceptance by Cenuco of this Agreement.
3. CENUCO'S OBLIGATIONS TO RESELLER.
Cenuco agrees to:
(A) Use its best Efforts to promptly fill Reseller's proper orders for
Products.
(B) Make available the services of a Cenuco sales representative to provide
Product information, merchandising and general sales support as well as
a Cenuco Security educational, training and informational website.
(C) Provide Reseller with Product information, literature and sales
materials (in quantities agreed to by Cenuco and Reseller) designed to
aid Reseller in the introduction and sale of Products.
(D) Provide Reseller with Tier-3 Support.
4. RESELLER'S OBLIGATIONS TO CENUCO.
Reseller agrees to:
(A) Vigorously and enthusiastically promote the sale of the full line or
Products, which include the MommyTrack(TM) and Security Communicator(TM)
and will maintain a well-trained and well-managed sales force capable of
and committed to maximizing the demand for Products through every proper
means.
(B) Not misrepresent either directly or by omission the capabilities,
qualities, or characteristics of the Products.
(C) Every thirty- (30) days, Cenuco and Reseller agree to review Reseller's
performance, sales projections, and obligations under this Agreement.
(D) Maintain inventory as prescribed in Schedule A.
(E) Supply promptly all financial information required by Cenuco's Credit
Department to assess Reseller's credit worthiness. Reseller will make
prompt payment of all Cenuco invoices in accordance with current payment
terms. Reseller agrees not to make any deductions of any kind from
Cenuco invoices unless Reseller has received an official credit
memorandum from Cenuco authorizing such deduction.
(F) Hold in confidence and not disclose to others Cenuco's marketing plans,
promotional programs and other Cenuco confidential information.
(G) Use the name(s) "Cenuco," "MommyTrack", "Security Business
Communicator", "Security Communicator", or trademarks and Patents owned
by Cenuco, in strict accordance with the guidelines furnished from time
to time by Cenuco.
(H) Reseller agrees to purchase products consisting of Security
Communicators(TM) and MommyTracks(TM) as per Schedule A that is attached
to this agreement.
5. TERRITORY.
(A) Cenuco agrees to make Products available to Reseller for resale to
dealers, as well as residential, commercial and governmental end-users
located in the United States. Reseller agrees not to sell, ship or
distribute in any manner, Cenuco Products to any customer located
outside of the United States.
(B) Reseller agrees that any resale, shipment or distribution by Reseller or
its agents or employees to any customer located outside of the United
States may result in Termination of this Agreement as provided herein.
6. SPECIAL PRICING PROGRAMS.
Cenuco has made available to Reseller special Tier pricing programs, which
provide additional discounts from those prices in Cenuco's Reseller price
pages.
(A) The terms and conditions of Cenuco's special pricing programs will be
supplied and/or amended from time to time at Cenuco's sole discretion.
SALES, SHIPMENT OR DISTRIBUTION OF CENUCO PRODUCTS BY RESELLER OR ITS
CUSTOMER OR AGENT IN VIOLATION OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT AND CENUCO'S SPECIAL PRICING PROGRAMS WILL NOT QUALIFY FOR
SPECIAL PRICES UNDER ANY SPECIAL PRICING PROGRAM.
(B) Reseller agrees to maintain accurate records for all products shipped
under any Cenuco's pricing programs. In the event Reseller does not
maintain accurate records, this may disqualify Reseller from
participation under any present or future pricing and promotional
programs.
7. PRICES AND TERMS AND CONDITIONS OF SALE.
(A) The price of Products and other terms and conditions of sale including
payment terms, minimum order requirements are as stated in Cenuco's
published price pages. Reseller acknowledges that it has received a copy
of those price pages current as of the effective date of this Agreement
and that all shipments of Product is F.O.B. Boca Raton, Florida, USA.
(B) Prices may be increased and other terms and conditions of sale may be
changed by Cenuco at any time with thirty (30) days prior written notice
to Reseller, but the change will not affect any order properly placed
with Cenuco and ready for immediate shipment before the effective date
of the change. Prices may be decreased without prior notice to Reseller
and Reseller will be invoiced at the new lower price on all orders
scheduled for shipment after the effective date of the price decrease.
If the regular (non-promotion) price of any Product decreases, Cenuco
will credit the price difference for those Products shipped to Reseller
within thirty (30) days of the effective date of the price decrease upon
request within fifteen (15) days of the announced price decrease. The
foregoing does not apply to periodic promotions that may be offered by
Cenuco in which prices of Products may be directly or indirectly reduced
for fixed periods of time.
(C) Prices listed on Cenuco's price pages do not include sales, use, excise,
or similar taxes. The amount of any present, retroactive or future
sales, use excise or similar tax applicable to Reseller's purchase of
Products shall be added to the Cenuco invoice and paid by Reseller
unless Reseller provides Cenuco with tax exemption certificates
acceptable to the appropriate taxing authorities.
(D) Products may be ordered pursuant to purchase orders submitted to Cenuco
by Reseller. Acceptance of any purchase orders placed by Reseller,
either by written acknowledgement or by shipment of Products, shall NOT
constitute acceptance by Cenuco of any of the terms and conditions of
such purchase orders except as to identification and quantity of the
Products involved. The provisions of this Agreement shall govern all
purchase orders.
(E) If any Product is in short supply, Cenuco may allocate the available
supply of Product among its customers in the manner that Cenuco
considers most equitable.
(F) Cenuco may change or limit the amount or duration of credit to be
allowed Reseller. Cenuco may cancel any purchase orders accepted by
Cenuco or to delay the shipment thereof, if Reseller fails to meet
payment schedules or other credit or financial requirements established
by Cenuco.
(G) For the purpose of securing payment to Cenuco of the purchase price of
the Products, Reseller hereby grants to Cenuco a purchase money security
interest under the Uniform Commercial Code in any and all Products
purchased by Reseller under this Agreement and the proceeds thereof,
including all insurance proceeds. Reseller shall execute, and Cenuco is
hereby authorized as attorney-in-fact to execute and delivery on behalf
of Reseller, any and all financing statements and other instruments
which Cenuco may deem necessary or desirable to protect or perfect any
such security interest.
(H) Cenuco may discontinue the production or sale of any Product at any time
during the term of this Agreement.
(I) Reseller shall be free to unilaterally establish its own resale prices
and terms with respect to the resale of Products. Cenuco and its
employees have no authority to instruct the Reseller as to what its
resale prices must be, not to interfere with the Reseller's independent
establishment of resale prices. However, on all price increases by
Reseller, Cenuco requests that it be notified.
8. WARRANTIES AND LIMITATIONS OF REMEDIES AND DISCLAIMERS.
(A) Cenuco warrants that its Products are free of defects in material and
manufacture at the time of shipment. Individual Products may have
additional or different warranties as stated on Product packaging,
packaging inserts, prices pages, or literature. If any Product is found
to be defective in material and manufacture during the applicable
warranty period, Cenuco's entire liability and Reseller's exclusive
remedy, shall be at Cenuco's option either (a) repair, or (b)
replacement of the Product.
(B) THIS WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF
MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, ANY IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING OR OF
PERFORMANCE, CUSTOM OR USAGE OF TRADE EXCEPT OF TITLE AND AGAINST PATENT
INFRINGEMENT.
(C) If Reseller offers express or implied warranties and limited remedies
which differ from those set forth above, Reseller agrees to assume full
responsibility for all liability, loss, cost, and expense arising out
of, or in connection with the different warranties and limited remedies
offered by Reseller.
(D) Cenuco shall have no obligations under this warranty with respect to
Products that have been modified or damaged through misuse, abuse,
accident, neglect, or mishandling by Reseller, reseller, or end user.
(E) Exclusion of Consequential and Incidental Damages. CENUCO SHALL NOT
UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFITS, REVENUE OR BUSINESS) IN ANY WAY RELATED TO THE PRODUCTS, ANY OF
RESELLER'S PURCHASE ORDERS, THIS AGREEMENT, OR THE TERMINATION OF
NON-RENEWAL AGREEMENT. This exclusion applies regardless of whether such
damages are sought based on breach of warranty, breach of contract,
negligence, strict liability in tort, or any other legal theory.
9. TERM AND TERMINATION.
(A) This agreement has an initial Term of two years beginning on the date
Cenuco signs this Agreement. After the initial Term, the Agreement will
be automatically renewed for two-year periods, provided Reseller has met
all obligations under this Agreement. Either Party may elect not to
renew this Agreement for any reason by sending the other Party written
notice of its intention not to renew at least thirty (30) days prior to
the expiration of the then current annual term.
(B) The provisions of this Agreement govern any order placed by Reseller and
accepted by Cenuco after the expiration or termination of this
Agreement, but this place or acceptance of post-expiration orders does
NOT otherwise extend the term of this Agreement.
(C) In the event that either Party to this Agreement fails to perform or
comply with (as required) any of the provisions contained herein, this
Agreement may be terminated by either Party upon thirty (30) days
written notice. The Party receiving such notice shall have thirty (30)
days, or in the case of late invoice payments, ten (10) days from the
date of receipt thereof, to cure the failure, at which time this
Agreement shall terminate if such failure has not been or cannot be
cured.
(D) The termination or non-renewal of this Agreement shall not release
Reseller from the obligation to pay any sum that may be owing to Cenuco
(whether then or thereafter due Cenuco) or operate to discharge any
liability that had been incurred by Reseller to any such termination or
non-renewal.
10. OBLIGATIONS UPON TERMINATION OR NON-RENEWAL.
Upon or in connection with any termination or non-renewal of this Agreement,
the following provisions shall apply:
(A) Reseller shall immediately cease to represent itself as an authorized
Reseller of Cenuco with respect to the Products and cease using any
trade name or trademark of Cenuco. Reseller shall take all appropriate
steps to remove and cancel its listings in telephone books, and other
directories or elsewhere containing any of Cenuco's product trade names
or trademarks.
(B) During the period between the giving of the notice of termination or
non-renewal in paragraph 8 (A) or (C) and the effective date of the
termination as set forth in such notice, all Products shall be delivered
to Reseller upon a cash with order basis (COD).
(C) Cenuco has the option for thirty (30) days after the effective date of
termination or non-renewal to repurchase from the Reseller all or any
part of the Reseller's inventory of Products at Cenuco's current
published prices. Reseller may sell, in accordance with the provisions
of this Agreement, those Products in its inventory on the date of such
termination or non-renewal for which Cenuco has not exercised its option
to repurchase.
11. EXCUSED PERFORMANCE.
Cenuco shall not be liable for nor be deemed to be in default on account of
any failure to perform or deliver Products if due to any cause or condition
beyond Cenuco's reasonable control.
12. RELATIONSHIP OF THE PARTIES.
The relationship established between Cenuco and Reseller by this Agreement
is that of a vendor to its vendee. Reseller is not an agent of Cenuco an has
no authority to bind Cenuco, transact any business in Cenuco's name or on
its behalf in any manner, or make any promises or representations on behalf
of Cenuco. Reseller agrees to represent itself only as an independent
business that is an "authorized Cenuco Reseller." The employees and agents
of Reseller are NOT for any purpose the employee or agents of Cenuco.
13. NO ASSIGNMENT.
Reseller shall not assign its rights or delegate its duties under this
Agreement without Cenuco's prior written approval.
14. NO WAIVER.
Any failure or delay by either Party in exercising any right or remedy in
one or may instances will not prohibit a Party from exercising it at a later
time or from exercising any other right or remedy.
15. GOVERNING LAW.
The laws of the state of Florida shall govern this Agreement.
16. ARBITRATION.
All claims, demands, disputes, controversies and differences between the
parties arising out of or relating to this Agreement and which are not able
to be resolved after good faith discussions between the appropriate vice
presidents of both Cenuco and Reseller shall be settled by binding
arbitration in accordance with the rules of the American Arbitration
Association, and judgment upon award may be entered into any court having
competent jurisdiction.
17. JUDICIAL REMEDY.
Notwithstanding the arbitration provision descried in this Section 15,
Cenuco will at all times retain the right to seek injunctive relief, or any
other equitable or judicial remedy, in any court, Federal or otherwise, and
in the County of Palm Beach, Florida, for any breach of this Agreement by
Reseller.
18. ENTIRE AGREEMENT.
This Agreement and the Exhibits referred to in this Agreement, which
Exhibits are incorporated herein and made a part of hereof by this
reference, supersedes any and all prior agreements, if any, whether written
or oral, between the Parties with respect to the subject matter contained
herein. Each Party agrees that it has not relied on any representation,
warranty, or provision not explicitly stated in this Agreement and that no
oral statement has been made to either Party that in any way tends to waive
any of the terms or conditions of this Agreement. This Agreement constitutes
the final written expression of all terms of the Agreement, and it is a
complete and exclusive statement of those terms. No part of this Agreement
may be waived, modified, or supplemented in any manner whatsoever (including
the course of dealing or of performance or usage of trade) except by a
written instrument signed by duly authorized of the Parties.
IN WITNESS WHEREOF, the Parties have signed this Agreement as of the day and
year first above written.
Worldwide Net, Inc. Cenuco, Inc.
-------------------
(Reseller Name)
By: /s/ Xxx Xxxxxxx By: /S/Xxxxxx Xxxxxxxxx
--------------- -------------------
Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
Xxx Xxxxxxx
-----------
NAME (Please Print)
Chief Executive Officer
-----------------------
TITLE (Please Print)
Schedule (A):
Xxx Xxxxxxx, Chairman & CEO
Worldwide Net, Inc.
000 Xxxxxx Xxxxxx Xxxx 0xx xxxxx
Xxxxxxxxx, Xx 00000
Below chart depicts November 2002 thru October 2003 guaranteed receipt
of product and payment
Payment terms are based on Worldwide Net, Inc. credit and history.
The first 3 months will require a 50% C.O.D of purchased product
Mommy Track Cenvid 3.1 Existing Total
Nov 95 5 $155,750
Dec 95 5 $155,750
Jan 95 5 $155,750
Feb 195 5 $300,250
March 195 5 $300,250
April 195 5 $300,250
May 195 5 $300,250
June 195 5 $300,250
July 195 5 $300,250
Aug 195 5 $300,250
Sept 195 5 $300,250
Oct 195 5 $300,250
________________________________________________________________
Total $3,169,500.00
Below chart depicts November 2003 thru October 2004 guaranteed receipt
of product and payment
Payment terms are based on Worldwide Net, Inc. credit and history
Mommy Track Cenvid 3.1 Existing Total
Nov 195 5 $300,250
Dec 195 5 $300,250
Jan 195 5 $300,250
Feb 195 5 $300,250
March 195 5 $300,250
April 195 5 $300,250
May 195 5 $300,250
June 195 5 $300,250
July 195 5 $300,250
Aug 195 5 $300,250
Sept 195 5 $300,250
Oct 195 5 $300,250
________________________________________________________________
Total $3,603,000.00
