Exhibit 10.15
THIS AGREEMENT is made as of the 15th day of November, 2001.
BETWEEN:
SPORG CORPORATION, a corporation duly incorporated under the
laws of the State of Nevada, U.S.A. and having an office at P.
O. Xxx 00000, Xxxxx 0000, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx.
Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
Facsimile Telecopier Number: (000) 000-0000
Electronic Mail Address: xxxx@xxxxx.xxx
(hereinafter called the "COMPANY")
OF THE FIRST PART
AND:
REGISTRATION MASTERS LTD., a British Columbia company having
an office at Second Floor, 0000 - 000xx Xxxxxx, Xxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
(hereinafter called the "AGENT")
OF THE SECOND PART
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MARKETING AND SALES AGENCY AGREEMENT
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WHEREAS:
A. The Company has created and developed a unique Internet-distributed software
engine to facilitate the registration of members of Passport Holders (as such
term is hereinafter defined) and is in the business of software applications
development and licensing, owning, enhancing, operating and selling
Internet-distributed membership registration services to such Passport Holders
through the Company's WEB sites located at the Internet addresses, "Xxxxx.xxx"
and "Xxxxx.xx" (the "Product");
B. The Company is the owner of and controls the licensed use of the Internet
addresses, "Xxxxx.xxx" and "Xxxxx.xx", the trade names, "SPORG", "Xxxxx.xxx" and
"Xxxxx.xx", and all trade marks (the "Trade Marks") used in connection
therewith;
C. The Company requires a representative to assist the Company in marketing and
selling Internet-distributed membership registration services to Passport
Holders (as such term is hereinafter defined) through the Company's WEB sites
located at Internet addresses, "Xxxxx.xxx" and "Xxxxx.xx" (the "Product") and
providing non-technical customer support for
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the Company's customers in the Provinces of Saskatchewan, Alberta and British
Columbia, Canada (the "Territory");
D. The Agent has represented to the Company that the Agent has contacts and
either itself can, or has engaged or will engage personnel with sufficient
contacts and professional qualifications to enable the Agent to, locate
customers for the Product and provide marketing support to purchasers of the
Product in the Territory;
E. It is a condition of appointment by the Company as its agent in the Territory
that the Agent enrol in a customized marketing and sales training program
designed and developed by the Company in order to prepare the Company's agents
properly to present the Product to potential customers and to enable such agents
and their respective management personnel to satisfactorily train employees
regarding the Product and the marketing and sale thereof, and regarding the
Company's system and operating procedures (the "Product Marketing Seminar"); and
F. The Agent understands that the specifications, policies and controls
established by the Company from time to time are directed to building and
maintaining a uniformly high quality of Product presentation and customer
service, maintaining and furthering the goodwill associated with the Company and
its products and services, and protecting the Company's proprietary rights to
the Company's trade names, Internet sites, Trade Marks and goodwill,
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and the covenants and agreements hereinafter set forth and other good
and valuable consideration paid by the parties hereto to each other, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.00 GRANT OF MARKETING AND SALES PRIVILEGE AND TERRITORY
1.01 The Company hereby appoints the Agent as its exclusive representative in
the Territory, reserving the concurrent right to appoint other representatives
in other territories and to promote and sell the Product (as hereinafter
defined) directly, to:
(a) develop the promotion and sale of the Product to potential customers;
and
(b) assist the Company in delivering the Product to existing and potential
customers.
within the Territory on the terms and conditions set out in this agreement.
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1.02 The Company hereby grants to the Agent a licence only, upon the terms and
conditions hereinafter set out, to use and display the Company's Trade Marks and
trade names, but only in connection with the sale of the Product. Nothing herein
shall confer upon the Agent any right, title or interest in or to the Trade
Marks, Internet sites, trade names or goodwill of the Company. Upon the expiry
or termination of the principal-agent relationship between the Company and the
Agent hereby created, the Agent shall deliver and surrender up to the Company
all operations and other manuals, advertising material, training materials,
Trade Marks, trade names and the possession of any physical objects other than
supplies bearing or containing any of same in its possession or in the
possession of any of its employees, agents, directors, officers, affiliates or
associates (collectively, "RELATED PARTIES") and Agent shall not thereafter use
any of the same or permit Related Parties to use the same, and Agent hereby
acknowledges and agrees that ownership of all such items is and shall at all
times remain vested in the Company.
1.03 The Agent shall not sell or market the Product or permit the Product to be
sold or marketed outside of the Territory without the Company's written consent.
2.00 RELATIONSHIP BETWEEN THE PARTIES
2.01 Nothing herein contained shall constitute the Agent the legal
representative of the Company for any purpose other than as stated herein and
the Agent is not authorized or empowered to assume or to create any obligation
on behalf of the Company or to bind the Company in any manner.
2.02 Nothing in this agreement is intended to create an employment relationship
between the Company and the Agent, the Agent hereby acknowledges that no such
relationship has been created and the Agent shall be forever estopped from
contending otherwise..
2.03 Nothing in this agreement is intended to create a franchisor-franchisee
relationship between the Company and the Agent. The Agent hereby acknowledges
that no such relationship has been created hereby and that in consequence, the
Agent will enjoy no rights which may be conferred upon franchisees in such
relationships by the securities or franchise legislation of the jurisdiction in
which the Agent resides or carries on business and the Agent shall be forever
estopped from contending otherwise.
3.00 TERM OF AGREEMENT
3.01 This agreement shall become effective on the day following the date upon
which the Agent completes the Product Marketing Seminar to the satisfaction of
the Company, shall be in force for a period of three (3) years from the date
first above mentioned (which date shall hereinafter be called the "EFFECTIVE
DATE" and which period of time shall hereinafter be called the "Term") and,
provided the Agent is not then in breach of his obligations hereunder, shall be
automatically renewed for successive periods of three (3) years each unless
terminated in accordance with this agreement (each of which shall hereinafter be
called a "RENEWAL TERM").
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4.00 TERMS OF SALE OF THE PRODUCT
4.01 All orders for the Product by purchasers remitted to the Company by the
Agent are subject to acceptance by the Company. Acceptance by the Company of
such an order shall create a binding agreement between the purchaser and the
Company.
4.02 The Company will endeavour to fill accepted orders as promptly as
practicable, subject however, to force majeure or other cause beyond the
reasonable control of the Company.
4.03 The Company will provide the Agent with information concerning new
prospects, products, sales plans and objectives with respect to the sale of the
Product, and where the Company in its sole discretion deems such response
advantageous, will respond to requests for quotations, supply reference lists
and technical presentations to potential customers, and accommodate visits from
potential customers.
4.04 The Agent expressly releases the Company from liability for any loss or
damage arising from the failure of the Company to fill any orders procured by
the Agent.
4.05 The Company shall pay the Agent a commission in accordance with the
schedule of commissions attached hereto as Schedule "A" in respect of the total
revenues derived by the Company from sales of Product in the Territory, whether
from cash sales of Product or charged sales thereof, or revenues arising from
the operation of the Agent's business, less all returns, refunds and allowances,
if any, the amount of any commission actually paid by the Company to any debit
card or credit card issuers in respect of debit or credit card sales to
customers in the Territory, and any sales or other taxes which are separately
stated and which the Company collects from customers and remits to any federal,
provincial or local taxing authority ("Gross Sales") during the Term or any
Renewal Term. Commission payments to the Agent shall be made on the fifteenth
(15th) day of each and every month in respect of sales of Product by the Agent
in the Territory during the calendar month last ended, commencing on the
fifteenth (15th) day of the second month of the Term and concluding on the
fifteenth (15th) day of the month following the expiry or termination of the
Term or any Renewal Term, calculated on the amount of money or consideration
actually received by the Company in respect of sales of Product in the Territory
during that calendar month. The Agent hereby acknowledges that commissions
payable to the Agent shall be based solely upon the Company's record of sales of
the Product in the Territory and that such calculation shall be conclusive and
the accuracy thereof not be subject to challenge or review of any nature
whatsoever.
4.06 The Company shall have the right at any time to change the Product without
notice to the Agent but shall give the Agent such information with respect to
such changes as may be reasonably required by the Agent in order to promote and
effect Sales.
4.07 The Company shall have the right to change the price of the Product at any
time upon giving the Agent thirty (30) days' notice thereof.
4.08 Upon publication and delivery to the Agent of any amendment to Schedule "B"
hereto those amendments shall thereupon form part of this agreement.
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4.09 The Company shall have the right to make additions to or enhancements of
its product line and to establish rates at which commissions shall be payable to
the Agent based upon the Company's record of sales of any such addition or
enhancement of its product line from time to time, which rates may differ from
those set out in Schedule "B" annexed hereto.
4.10 The Company shall have the right to deduct from commissions payable to the
Agent from time to time any amounts which it is required by law to deduct
therefrom or any amounts which are due and owing from the Agent to the Company
at the time such commissions are payable by the Company to the Agent.
5.00 OBLIGATIONS OF THE COMPANY
5.01 The Company shall provide to the Agent:
(a) the Product Marketing Seminar within thirty (30) days after
the execution and delivery of this agreement, which program
shall be provided at the Agent's expense;
(b) access to its Internet site(s) for the purpose of
demonstrating the operation of the SPORG registration system
to potential customers or training customers to access and use
the SPORG registration system, or to identify and resolve
customer difficulties in accessing and using the SPORG
registration system;
(c) passwords and other security protocols required to access the
Company's internet site(s) for purposes related to the
performance of the Agent's obligations under this agreement
including, without limitation, accessing on-line training
programs and materials, marketing and sales bulletins and
memos posted by the Company on its Internet site(s), and
accessing customer and sales data for the Territory;
(d) additional training materials developed by the Company from
time to time;
(e) advertising and promotional materials and other sales aids
developed by the Company from time to time;
(f) regular communications to keep Agents up to date with respect
to new ideas and new developments in the SPORG system; and
(g) additional Agent training programs and refresher courses, as
well as Agent seminars, to be offered from time to time by the
Company at no charge, at locations chosen by the Company,
which the Agent and its management personnel shall be
entitled, but not obligated, to attend at the Agent's expense
in respect of travel and living expenses incurred in
connection therewith.
5.02 If additional or special promotional or operational assistance, or
additional training, over and above that normally furnished by the Company, is
required or is requested by Agent, the Company and Agent shall discuss what is
required, and the Company will furnish such additional assistance or training,
subject to the Company's staff availability as to
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timing, PROVIDED, HOWEVER, that the Company reserves the right to charge a
reasonable standard fee, together with its reasonable expenses incurred in
providing such additional assistance or training, including any reasonable
transportation and living expenses incurred in furnishing such additional
assistance or training, and the salaries and benefits of the Company's staff
involved in giving such additional assistance or training, during the time when
the Company's personnel are travelling to and from the Location, if applicable,
as well as during the time that such assistance or training is being given.
5.03 If the Agent, after performing those obligations set out in paragraph 6.06
hereof, fails to complete the Product Marketing Seminar to the satisfaction of
the Company within a period of Sixty (60) days after the execution and delivery
of this agreement, the Company shall refund to the Agent the entire tuition fee
paid by the Agent to the Company in respect of the Product Marketing Seminar.
6.00 OBLIGATIONS OF THE AGENT
6.01 The Agent shall promote the sale of the Product throughout the Territory in
a manner satisfactory to the Company and for this purpose shall appoint
sufficient dealers, salesmen or other representatives. Without limiting the
foregoing, the Agent shall provide the Company with the following services:
(a) continuously identify and pursue potential business and other
useful contacts, notify the Company of such opportunities and
facilitate sales meetings with potential customers;
(b) promptly and diligently investigate inquiries, sales leads and
customer service requests received by the Company from clients
or potential clients in the Territory;
(c) provide such logistical, administrative and other support for
the Company in the Territory as the Company may require,
including, without limitation, secretarial services,
telephone, telefax, internet or electronic mail access;
(d) assist the Company in the preparation, submission, translation
and negotiation of presentations, bids, quotations, contracts
and related documents in response to requests for proposal and
otherwise;
(e) establish and maintain or cause to be established and
maintained a business presence identifying the Agent as a
SPORG agent within the Territory;
(f) if a resident of Canada, for the purposes of the INCOME TAX
ACT, R.S.C. 1985, c. 1 (Fifth Supp.), as amended, become and
continue to be a registrant for purposes of GST remittances
under Subdivision d of Division V of Part XI of the EXCISE TAX
ACT, R.S.C. 1985, c. E-15, as amended;
(e) display and present literature on the Product;
(f) provide ongoing non-technical support to and liaison with the
Company's customers in the Territory in the use of the
Product;
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(g) attend and actively participate in and cause its principal
marketing and sales personnel to attend and actively
participate in marketing and sales meetings convened by the
Company, all at the Agent's expense, and, in respect thereof,
pay to the Company the sum of Seventy Six Thousand Five
Hundred Dollars ($76,500.00) (the "Fee"), , in twelve (12)
equal monthly instalments of Six Thousand Three Hundred
Seventy Five Dollars ($6,375.00), commencing on the 15th day
of March, 2001. In computing whether and to what extent the
Agent has paid the Fee to the Company, reasonable expenses
incurred by the Agent pertaining to travel to, and
accommodation and meals for such personnel during such
marketing and sales meetings, and reasonable expenses incurred
by the Agent for the production of business cards, letterhead
and other promotional, marketing and sales items, documentary
evidence of which is supplied by the Agent to the Company,
shall be credited against the payment of the Fee.;
(h) advise the Company regarding legal requirements and business
practices within the Territory;
(i) not to enter into any arrangement or agreement by which the
Agent appoints a representative or agent for the purpose of
performing some or all of its obligations hereunder (an
"Appointment") without the prior consent in writing of the
Company;
(j) to prevent any representative or agent which it appoints for
the purpose of performing some or all of its obligations
hereunder from appointing his own representative or agent for
the purpose of performing some or all of his obligations under
his Appointment;
(k) cause each representative or agent and each of their
employees, directors, officers, representatives or agents
strictly and punctually to observe and perform all obligations
of the Agent under this agreement as if such representative or
agent or its employee, director, officer, representative or
agent were the Agent; and
(l) cause each representative or agent appointed by the Agent to
assist the Agent in the performance of its obligations under
this agreement to enter into an agreement with the Company and
the Agent in the form annexed hereto as Schedule "D".
6.02 The Agent shall carry out its duties as prescribed and in accordance with
good and businesslike practices, shall use its best efforts and reasonable care
and skill and judgment to carry out its duties, shall conduct itself in
accordance with the highest professional ethical standards and shall cause its
representatives, sub-distributors and agents to do likewise. Without limiting
the generality of the foregoing, the Agent shall comply with those rules set out
in Schedule "B" annexed hereto, which rules may be modified from time to time in
the sole and unfettered discretion of the Company, upon thirty (30) days' notice
in writing to the Agent.
6.03 The Agent shall provide a report to the Company not less than once each
month, which shall contain the following information:
(a) the name of each customer or potential customer for the
Product that the Agent has contacted during the preceding
month; and
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(b) the status of any negotiations with customers or potential
customers regarding the sale of Product in which the Company
is not yet participating.
6.04 During the term of this agreement and for a period of three (3) years
thereafter, within the Territory and any other territory in which the Company
has entered into an agreement substantially similar to this agreement with
another person, firm or entity identified therein as the Company's agent in that
territory, the Agent shall not sell, market, promote, manufacture or distribute
any services deemed by the Company to be competitive with the Product, nor shall
the Agent be connected in any manner with any person, firm or entity who or
which sells, markets, promotes, manufactures or distributes any products deemed
by the Company to be competitive with the Product.
6.05 The Agent shall not employ or solicit employment of any employee of the
Company or its affiliates or any other agent of the Company without the prior
written consent of the Company, which may be withheld by the Company, such
consent not to be unreasonably or arbitrarily withheld. The Agent may hire any
ex-employee of the Company or its affiliates or of any other agent of the
Company with the prior written consent of the Company, such consent not to be
unreasonably or arbitrarily withheld.
6.06 At the first opportunity and in any event not later than thirty (30) days
after the execution and delivery of this agreement, the Agent shall enrol in and
diligently pursue the Product Marketing Seminar and any other training programs
in which the Company may from time to time require the Agent to enrol, at the
sole expense of the Agent and shall cause all of the Agent's principal personnel
engaged in the marketing and sale of the Product to be trained in and to attain
a standard of proficiency regarding the Product and the Company's system and
procedures, which standard may be established or changed by the Company from
time to time.
6.07 The Agent shall keep true and accurate books of account, detailing therein
all transactions and dealings of and in relation to the Agent's business. The
Agent shall keep and preserve for a period of at least thirty-six (36) months
after the end of each year all business records and evidence of Gross Sales and
business transactions for such year.
6.08 The Company shall have the right, during reasonable business hours and
without undue disturbance of the Agent's business operations, to enter the
Agent's business premises and from time to time inspect books of account, bank
statements, documents, records, tax returns, papers and files of the Agent
relating to Gross Sales and business transacted, and upon request by the
Company, the Agent shall make all such records available for examination at the
Agent's business premises. If the Agent at any time causes an audit of the
Agent's business to be made by a chartered accountant or a certified general
accountant, the Agent shall furnish a complete copy of the financial statements
audited by such auditor, together with the auditor's report thereon, at no cost
to the Company. The Company hereby covenants and agrees to maintain all
information in respect of Agent's said statements and tax returns in strictest
confidence, and hereby declares that it shall only use information for the
purposes of enforcing the Agent's obligations under this agreement.
6.10 The Agent shall at all times maintain sufficient working capital to operate
its business in a manner satisfactory to the Company and, in any event, not less
than Ten Thousand Dollars ($10,000.00).
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6.11 The Agent shall open for business under one or more of the trade names
owned by the Company within Thirty (30) Business Days after the Agent completes
the Product Marketing Seminar to the satisfaction of the Company and shall not
fail to be open for business under the said trade name(s) on every weekday
thereafter without the prior written consent of the Company, unless the Agent is
unable to continue to be open for business under the said trade name(s) for
reasons not related to a breach by the Agent of this agreement, including,
without limitation, force majeure, strike, fire, natural disaster, or
unavoidable casualty, and not caused or continued directly or indirectly, by
Agent's omission to act diligently, wilful conduct or negligence.
6.12 The Agent and each of its employees, while engaged in performing the
Agent's other obligations pursuant to this agreement which require contact with
the Company's customers or potential customers, shall wear uniforms which
conform to the Company's design and specifications.
6.13 The Agent shall send a copy of any response which it makes by electronic
mail to any customer inquiry, request for assistance or sales lead to the
Company at the Company's electronic mail address first above mentioned or, if
such address changes, to the Company at any other electronic mail address of
which the Agent has been given notice by the Company in the manner hereinafter
set out.
6.14 The Agent shall achieve Gross Sales during each Business Year of the Term
or any Renewal Term equal to or exceeding the Gross Sales quota set out for such
Business Year in Schedule "C" attached hereto.
7.00 CONFIDENTIALITY AND NON-CIRCUMVENTION
7.01 The Agent acknowledges that during the course of his association with the
Company, he has or may have access to or become acquainted with confidential
technical or business information relating to the business affairs of the
Company (hereinafter called the "CONFIDENTIAL INFORMATION"), in particular the
contacts, sources of supply and customers of the Company, which have not been
disclosed by the Company to the general public and which the Company desires to
keep confidential. The Agent agrees to retain in strictest confidence, except as
agreed in writing by the Company, such Confidential Information.
7.02 In handling the internal flow of material regarding the Confidential
Information, the Agent shall take all reasonable precautions and exact all
necessary non-disclosure and non-competition obligations from its officers,
employees, agents and persons receiving any Confidential Information on behalf
of the Company to ensure that such information is kept confidential and managed
in accordance with the terms of this agreement. A list of all persons, firms or
entities to whom such information is disclosed, together with copies of all
agreements made with those persons, firms or entities, shall be provided to the
Company upon five (5) days' notice in writing.
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7.03 The Agent shall not directly or indirectly contact, deal with or otherwise
become involved in any transaction with, nor divert or attempt to divert by
solicitation or any other means, the contacts, sources of supply or customers of
the business of the Company, and the Agent shall not use any Confidential
Information for any purpose other than the consummation of business transactions
between a purchaser and the Company.
7.04 The Agent acknowledges that it would be difficult to measure damages to the
Company from any breach of the covenants contained herein and further that money
damages may be an inadequate remedy for any such breach, and, if an adequate
remedy, so substantial as to be unenforceable. Therefore, the Agent agrees that,
in addition to any other remedy to which the Company may be entitled on a breach
hereof, the Company shall be entitled to obtain injunctive or other relief in
order to restrain any breach by the Agent without the necessity of showing or
proving any actual damage sustained.
7.05 The provisions contained in this section 7.00 shall survive the termination
of this agreement.
8.00 INDEMNITY BY THE AGENT
8.01 The Agent covenants to indemnify and save harmless the Company from any
loss, costs or damages the Company may suffer or incur by reason of:
(a) the negligent or dishonest acts of the Agent, its sub-agents,
representatives, servants or employees, or
(b) any of the Agent, its sub-agents, representatives, servants or
employees exceeding the Agent's authority, or
(c) any failure by the Agent to perform any of its obligations
hereunder.
9.00 TERMINATION
9.01 The Agent may terminate this agreement without cause by giving three (3)
months' notice prior to the expiry of the term of this agreement or any Renewal
Term.
9.02 The Company may terminate this agreement without notice for the following
reasons:
(a) breach by the Agent of any of the terms of this agreement, if
such breach continues for ten (10) days after the Company
delivers notice in writing to the Agent demanding that the
Agent cure such breach, provided, however, that if the nature
of such breach shall be such that it cannot be cured within
said ten (10) day period, and Agent shall immediately commence
to cure such breach and shall continue to proceed diligently
to do so, Agent shall have such
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additional reasonable period of time, not exceeding an
additional thirty (30) days, as may be reasonably necessary
to cure such breach;
(b) the Agent makes any false statement or misrepresentation on
its application to the Company for appointment as an agent or
in any other document which the Company requires the Agent to
submit from time to time;
(c) the Company incurs any liability as a result of the acts of
the Agent, its representatives, sub-distributors or its
agents;
(d) the Agent becomes insolvent, bankrupt, dissolved, liquidated
or wound up or becomes subject to insolvency, bankruptcy,
liquidation, dissolution or winding-up proceedings;
liquidation or dissolution;
(e) the Agent sells or purports to sell or transfer or otherwise
lose possession or its ownership or control of all or a
substantial part of its assets used in the performance of its
obligations hereunder;
(f) the Agent allows any items of personal property used in the
performance of its obligations hereunder to become the subject
matter of execution or levy, or to be attached, distrained, or
subject to sequestration or extent in any manner whatsoever,
without obtaining the release of such attachment, execution,
distress, levy, sequestration or extent within ten (10) days;
(g) a material change in ownership, control or management of the
Agent without the prior consent in writing of the Company;
(h) the Agent attempts to assign, transfer or convey any of the
Trade Marks, the Company's trade names, or the Company's
copyrights, trade secrets, systems, or methods of operation or
any of them, or discloses or uses or permits the use of the
same or any of them in derogation of the Company's rights
pursuant to this agreement, or uses or permits the use of the
same or any of them in a manner not authorized by the Company
pursuant to the terms of this agreement;
(i) the Agent engages in misleading advertising of its business or
the Company's business or operates in a dishonest, illegal or
unethical manner, or has its business licence suspended for
just cause or cancelled;
(j) the Agent commits any act which, in the opinion of the
Company, acting reasonably, might impugn the integrity of the
Agent or the Company or bring the Agent or the Company into
disrepute or induce a customer or potential customer to
refrain from or to terminate any business dealings with the
Agent or the Company;
(k) the Agent refuses or neglects actively and diligently to
promote the sale of additions to or enhancements of the
Company's product line or to respond to sales leads, inquiries
from customers or potential customers, or customer sales
requests relating to such additions to or enhancement of the
Company's product line;
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(l) the Agent attempts unilaterally to repudiate this agreement
and the performance and observance of any of the terms,
conditions, covenants, provisions and obligations contained
herein.
9.03 In the event of the Agent's default under this agreement, the Company may:
(a) at its election and notwithstanding the provisions of Section
12.00, bring such action for injunctive or other similar
relief as may be necessary to compel Agent to comply with its
obligations hereunder; or
(b) at its election and notwithstanding the provisions of section
12 hereof, and without waiving any claims for default or
breach hereunder and without prior notice to Agent, take
whatever steps it deems necessary to cure any default or
breach of Agent hereunder or under any related instrument or
agreement, for the account of and on behalf of Agent, and
Agent hereby irrevocably appoints the Company its
attorney-in-fact so to do, and the cost thereof to the Company
shall be due and payable forthwith by the Agent upon demand;
or
(c) notwithstanding the provisions of section 12 hereof, and
without waiving any claims for default or breach hereunder and
without prior notice to Agent, enter upon the Agent's business
premises, without being guilty of trespass or liable in any
way to Agent for such entry, for the purposes of securing the
return of the Company's property, the performance of Agent's
obligations of discontinuance and the protection of the
Company's rights upon expiry or termination, all as set out
herein.
9.04 If this agreement is terminated for any reason the Agent shall forthwith
deliver to the Company all copies of any information relating to customers of
the Company known to the Agent and a list of outstanding negotiations with
customers or potential customers of the Product updated to the date of
termination showing the following information:
(a) name of customer or potential customer and contact person;
(b) particulars of Product under negotiation;
(c) particulars of the business relationship between the Agent and
a customer or potential customer;
(d) anticipated order date, in the case of a potential customer;
and
(e) approximate value of order, in the case of a potential
customer.
9.05 No commission shall be paid to the Agent in respect of any sale of Product
after the agreement or any Renewal Term expires or is terminated.
9.06 The Agent acknowledges that, if this agreement expires or is terminated for
any reason whatsoever, the Company will suffer damages if Agent does not
discontinue forthwith its use of the Trade Marks, the Company's trade names, and
the Company's copyrights, trade secrets, systems, methods of operation, and
goodwill or any of same which are confusingly similar to or colourably imitative
of those used by the Company in the conduct of its business, and that in
addition to any other remedy for which this agreement provides or which is
available to the Company at law or equity, the Company shall have the right to
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claim and recover damages from Agent for such failure to discontinue. For the
purpose of calculating those damages, the parties hereto agree that for each day
subsequent to such expiry or termination that Agent operates his business
without having complied with the aforesaid obligations to discontinue, the sum
of Five Hundred Dollars ($500.00) per day shall be recoverable by Company as
liquidated damages in respect of such failure to discontinue and that such
liquidated damages constitute a reasonable pre-estimate of the damages to be
sustained by the Company in such event.
9.07 Upon expiry or termination of this agreement for any reason whatsoever, the
Company may, if the Agent does not do so, execute in Agent's name and on its
behalf, any and all documents necessary in the Company's judgment to end and
cause the discontinuance of the Agent's use of the Trade Marks, trade name and
copyrights owned by the Company or its affiliate, and the Company is hereby
irrevocably appointed and designated as the Agent's attorney-in-fact so to do.
9.08 The rights and remedies of the Company hereunder are cumulative and no
exercise or enforcement by the Company of any right or remedy hereunder shall
preclude the exercise or enforcement by the Company of any other right or remedy
hereunder or which the Company is otherwise entitled by law or equity to
enforce.
9.09 If the Company terminates this agreement pursuant to section 9.02 hereof,
the onus shall be upon the Agent to disprove the allegations upon which the
Company bases its termination thereof.
10.00 INTELLECTUAL PROPERTY
10.01 The Agent acknowledges, covenants and agrees that all goodwill and
ownership rights created or arising from the use by the Agent of the Trade
Marks, trade names, and the Company's system, methods of operation, format and
the goodwill thereof pursuant to this agreement and of any adaptations thereof
designated or approved by the Company in writing from time to time hereunder
shall accrue solely to the Company and that now and hereafter the Agent shall
assert no claim to any goodwill or ownership of same by virtue of the licensed
use of the Trade Marks and trade names or by virtue of its relationship hereby
created with the Company nor will it dispute or impugn the validity of same or
the rights of the Company thereto, or do or assist others to do or permit any
act or thing to be done in derogation of same. The Agent acknowledges that by
reason of the unique nature of the Company's systems, methods of operation and
format and the Company's aforesaid property rights and by reason of the Agent's
knowledge of and association with the Company's business during the Term or any
Renewal Term, the aforesaid covenants, both during the Term and any Renewal Term
and thereafter, are reasonable and commensurate for the protection of the
legitimate business interests and expectations of the Company, its affiliates
and other agents appointed by the Company or its affiliates from time to time.
The Agent further acknowledges the validity and ownership by the Company of the
Internet site names, "Xxxxx.xxx" and "Xxxxx.xx" and agrees that the right to
those Internet site names are and shall remain the absolute property of the
Company, subject to termination thereof by the relevant Internet site
registration authority. Finally, the Agent acknowledges the validity and
ownership of the Company's copyright in all materials supplied by the Company to
the Agent in which copyright may be
14
asserted, whether printed or electronically accessed, and agrees that copyright
in such materials (the "COPYRIGHT") is and shall remain the absolute property of
the Company.
10.02 The Agent shall not in any way do anything to infringe, harm or contest
the validity of the Trade Marks or Copyright. The Agent shall promptly notify
the Company of any and all infringements, imitations, illegal use or misuse of
the Trade Marks or Copyright of which the Agent becomes aware.
10.03 The Agent agrees that it shall not remove or alter the Trade Marks which
are affixed to the Products or affix any additional trade marks or trade
designations to any of the Products which bear the Trade Marks, without the
prior written consent of the Company.
10.04 The Agent agrees that it shall not engage in any unfair trade practices or
make any false or misleading statements or representations in advertising,
printed material or otherwise with respect to any of the Products bearing the
Trade Marks.
10.05 Throughout the Term or any Renewal Term, the Agent shall operate the
Location continuously under the name, "SPORG", or under that or such other name
or names as may be directed by the Company, and the Company's name shall be
clearly marked on the premises of the Location and on all of the Agent's
advertising, stationery, business cards, purchase orders, sales slips, cheques,
etc. in a manner specified or approved by the Company and which clearly
indicates that the Agent is the person, firm or corporation which is the
exclusive agent for the Company in the Territory. The Agent shall use the
symbol, (R) or (TM), as directed by the Company, together with the name of the
Company or any person, firm or entity stipulated by the Company, to indicate
that the Trade Marks used by the Agent are trade marks and the ownership of such
trade marks by the Company.
10.06 The Agent covenants and agrees to execute, upon the Company's request, the
appropriate form of application for registration of the Agent as a registered
user of the Trade Marks at the Location during the Term and any Renewal Term,
and the Company agrees to cause the same to be registered at the Canadian Trade
Marks Office and to provide the Agent with registration particulars, provided,
however, that the Agent, forthwith upon receipt of the Company's invoice
therefor, shall pay all fees and disbursements incurred by the Company in order
to effect such registration.
10.07 If at any time during the Term or any Renewal Term, the Company shall deem
it advisable to modify or discontinue use of any of the Trade Marks, or to adopt
and use any additional or substitute trade marks, it shall give notice in
writing to the Agent to that effect, allowing a reasonable time thereafter for
the Agent to comply with all such changes at the Agent's expense. All provisions
of this agreement applicable to the Trade Marks shall apply to any additional,
substitute or modified trade marks hereafter adopted by the Company and
authorized for use by the Agent by such notice, MUTATIS MUTANDIS.
10.08 Following termination of this agreement for any reason whatsoever, the
Agent agrees not to register or use any of the Trade Marks, or any trade marks
or trade names which are the same as or confusingly similar to the Trade Marks.
This obligation shall survive the termination of this agreement.
15
10.09 The Agent acknowledges, covenants and agrees that all goodwill and
ownership rights arising from the use by the Agent of the Trade Marks and the
Company's trade names, and the Company's system, Internet sites, methods of
operation, and the goodwill thereof pursuant to this agreement and of any
adaptations thereof designated or approved by the Company in writing from time
to time hereunder shall accrue solely to the Company, and that now and hereafter
Agent shall assert no claim to any goodwill or ownership of same by virtue of
the licensed use thereof, nor will it dispute or impugn the validity of same or
the rights of the Company thereto, or do or assist others to do or permit any
act or thing to be done in derogation of same. The Agent acknowledges that by
reason of the unique nature of the Company's systems, methods of operation, and
Internet sites and the Company's aforesaid property rights and by reason of the
Agent's knowledge of and association with the Company's business since the
commencement of the Term, are reasonable and commensurate for the protection of
the legitimate business interests of the Company, its affiliates and its other
agents.
11.00 ASSIGNMENT
11.01 During the term of this agreement, Agent shall have the right to assign,
transfer or sell its interest in this agreement, upon the terms and conditions
provided herein, subject only to the prior written consent of the Company. Such
consent shall not be unreasonably or arbitrarily withheld. The withholding of
such consent by the Company shall be reasonable, by way of illustration but not
limitation, if the proposed assignee is and will remain involved in another
business similar to or competitive with that of the Company or is not in the
Company's opinion financially responsible and economically and operationally
capable of performing the covenants and obligations of Agent hereunder; or if
the proposed assignee has had previous business operating problems which, in the
good faith judgment of the Company, indicate that such proposed assignee will
not be a suitable replacement for the Agent. The Company's consent to any
assignment shall not constitute a waiver of any claims, demands, actions or
causes of action it may have against the assignor of this agreement, and shall
not constitute a release of any guarantees of Agent's payment and performance
under this agreement which have been given to the Company prior to such
assignment.
11.02 In this agreement, if the Agent is a corporation, partnership, joint
venture or other non-individual entity, any transfer of shares, partnership, or
other interests, or the issuance of additional shares, or partnership or other
interests, or the redemption or other repurchase of shares, or partnership or
other interests, of the Agent which result in a change in the control of the
majority of the voting shares, or partnership or other interests, of the Agent
shall constitute an assignment, and in any event, an assignment, transfer,
issuance, redemption or other repurchase of fifty percent (50%) or more of the
voting shares, or partnership or other interests in the Agent shall constitute
an assignment for the purposes of this agreement.
11.03 It shall be a condition of consent by the Company to any assignment that
Agent shall have delivered to the Company a complete release of all claims
against the Company, its directors, officers, affiliates, associates,
shareholders, employees, sub-contractors, attorneys, agents and representatives
in respect of all obligations arising under or pursuant to this agreement, in a
form satisfactory to the Company.
16
11.04 For the purposes of this agreement, permanent incapacity or disability
shall mean inability to perform the Agent's obligation hereunder from day to day
for a material part of the normal working day for a period of three (3) months
or more. During any period of incapacity or disability, or pending assignment,
or in the event of death of the Agent or, if the Agent is a corporation, of its
sole active principal, the Company may and shall, if requested by the Agent or
his estate, appoint a competent and trained manager to operate the business of
the Agent for the account of Agent, and the Company's duty in so doing shall
only be to utilize its reasonable best efforts and to act in good faith, and the
Company shall not be liable in any way to Agent or to any creditor or Agent for
any debts, obligations, contracts, losses or damages incurred, or for any
purchases made during any period in which the Agent's business is so managed, so
long as such management appointment is carried out in good faith, and any such
manager so appointed shall be remunerated by Agent and shall, for all purposes
in acting as such manager, be deemed to be the agent or employee of Agent and
not of the Company.
12.00 ARBITRATION
12.01 The parties hereto agree that any controversy, dispute, question or claim
arising from or in connection with or relating to this agreement or it
existence, interpretation, construction, validity, enforceability, performance
or non-performance or any breach hereof including, but without limitation, any
claim that this agreement, or any portion hereof, is indefinite, invalid,
illegal, or otherwise void, voidable or unenforceable, shall be submitted to
arbitration, at the initiation of either party, in accordance with the
provisions of the Commercial Arbitration Act, R.S.B.C. 1996, c. 55, and
amendments thereto. Arbitration shall be before a single arbitrator, or if the
parties cannot agree upon a single arbitrator, then before a board of three (3)
arbitrators, one (1) appointed by each party and the third appointed by the
other two (2) arbitrators so appointed, and the decision of the arbitrator or
board of arbitrators as the case may be shall be final and binding upon the
parties. The arbitrator or arbitrators so appointed shall commence and conduct
the arbitration proceedings and render the award as expeditiously as is
practicable in the circumstances, and judgment upon the award may be entered or
enforced in the same manner as a judgment or order to the same effect in any
court having jurisdiction in respect thereto; provided, however, that the
provisions of this section shall not limit the Company's right to seek and
obtain any provisional remedy, including, without limitation, injunctive relief,
an order for recovery or delivery up of possession, or similar relief, from any
court of competent jurisdiction, as may be necessary in the Company's sole
judgment to protect its trade xxxx or other property rights, or in order to
protect against actual or threatened conduct that on balance might cause loss or
damage if allowed to persist until the completion of the arbitration process.
The situs of any arbitration proceedings hereunder shall be in the Territory.
13.00 MISCELLANEOUS
13.01 In this agreement and the schedules hereto, the following terms shall have
the meanings respectively ascribed to them below:
"BUSINESS YEAR", means any year commencing on the Effective Date or any
anniversary thereof, until the expiry or termination of the Term or any
Renewal Term.
17
"PASSPORT" means the access number or password issued by the Company
evidencing the current entitlement of its holder, by accessing one of
the Company's internet sites, to use the proprietary tools and
utilities developed by the Company to facilitate the registration or
renewal of registration of participants in programmes or activities
offered, operated or sponsored by, members or customers of and
potential participants in programmes or activities offered, operated or
sponsored by, members or customers of that Passport Holder;
"PASSPORT FEE" means the fee paid initially by each individual, body
corporate or politic, partnership, joint venture, or other collective
entity recognized by law in order to purchase the right, to access one
of the Company's internet sites, to use the proprietary tools and
utilities developed by the Company to facilitate the registration or
renewal of registration of participants in programmes or activities
offered, operated or sponsored by, members or customers of and
potential participants in programmes or activities offered, operated or
sponsored by, members or customers of that Passport Holder for a period
of one (1) year;
"PASSPORT HOLDER" means an individual, body corporate or politic, a
partnership, joint venture, or other collective entity recognized by
law that holds a Passport;
"PASSPORT RENEWAL FEE" means the annual fee payable by a Passport
Holder to the Company after the initial year of the Term in order to
continue to enjoy the right, by accessing one of the Company's internet
sites, to use the proprietary tools and utilities developed by the
Company to facilitate registration or renewal of registrations of
participants in programmes or activities offered, operated or sponsored
by, members or customers or potential participants in programmes or
activities offered, operated or sponsored by, members or customers of a
Passport Holder for a further year; and
"REGISTRATION REVENUE" means that portion of revenue paid to Passport
Holders in the Territory by registrants which is retained by the
Company based upon registrations sold by the Passport Holders through
use of the proprietary tools and utilities developed by the Company to
facilitate registration or renewal of registrations of participants in
programmes or activities offered, operated or sponsored by, members or
customers or potential participants in programmes or activities
offered, operated or sponsored by, members or customers of those
Passport Holders and accessible through the Company's internet sites to
Passport Holders.
In addition, all terms otherwise defined herein shall have the same
respective meanings ascribed to them in this agreement where used in
the schedules annexed hereto.
13.02 Any notice required or permitted to be given to any of the parties to this
agreement shall be in writing and may be sent by facsimile telecopier, or may be
delivered or mailed by prepaid registered post or personally delivered to the
party to which notice is to be given at the address or facsimile number of such
party above stated, or at another address or facsimile number designated by that
party in writing prior to the giving of such notice, and any such notice shall
be deemed to have been given and received by the party to whom it was addressed
on delivery, if delivered personally or by facsimile telecopier, and if mailed,
three (3) business days following the mailing thereof.
18
13.03 If there is an interruption in normal mail service due to strike, labour
unrest or other cause at or before the time a notice is mailed, the notice shall
be sent by fax, telegram or will be delivered.
13.04 Neither this agreement nor any of the rights, benefits or obligations
arising therefrom may be assigned by the Agent without the prior written consent
of the Company.
13.05 This agreement and all schedules to this agreement contain the entire
agreement between the parties relating to the subject matter contained herein,
any course of prior dealings or usage of the trade notwithstanding, and
supersedes all other agreements, oral or written, heretofore made between the
parties.
13.06 No alteration, modification, waiver or other change to this agreement
shall be binding upon the parties unless in writing and signed by both parties.
13.07 Waiver by either party of the strict performance of any term or condition
in this agreement shall not of itself constitute a waiver or abrogation of such
term or condition or operate as a waiver or acceptance of any subsequent breach.
The failure of either party to assert any claim for any of its rights or
remedies under this agreement in timely fashion shall not be construed as a
waiver of any such claim and shall not serve to modify, alter or restrict such
party's right to assert such claim at any time thereafter.
13.08 If any provision of this agreement is determined by any court of competent
jurisdiction to be illegal or unenforceable, it will be considered separate and
severable from this agreement and the remaining provisions of this agreement
will remain in force and be binding upon the parties as though the illegal or
unenforceable provision had never been included.
13.09 The headings in this agreement are for convenience of reference only and
shall not affect the interpretation of this agreement.. In this agreement, the
words, "herein", "hereof" and "hereunder" and other words of similar import
refer to this agreement as a whole and not to any particular section or other
subdivision of this agreement or schedule to this agreement. In this agreement,
the singular of any term includes the plural, and vice versa, the use of any
term referring to a particular gender is equally applicable to any other gender
and, where applicable, to a body corporate, the word, "or", is not exclusive and
the word, "including", is not limiting, whether or not non-limiting language,
such as "without limitation" or "but not limited to" or words of similar import,
is used with reference thereto;
(f) 13.10 The Agent, at its own sole expense, shall observe and comply with
and shall cause all of its agents, representatives, directors, officers
and employees to observe and comply with the provisions of all statutes
and regulations in force in the Territory including, without
limitation, all statutes and regulations pertaining to the collection,
management and distribution of data regarding individuals and, in
particular, the PERSONAL INFORMATION PROTECTION AND ELECTRONIC
DOCUMENTS ACT, S.C. 2000, c. 5, amendments thereto and regulations
thereunder.
13.11 This agreement shall be governed by and interpreted in accordance with the
laws of the Province of British Columbia and the laws of Canada applicable
therein.
19
13.12 This agreement shall enure to the benefit of and shall be binding on the
parties and their successors and permitted assigns.
13.13 If any statute, law, by-law, ordinance or regulation promulgated by any
competent authority with jurisdiction over the parties or this agreement or any
court order pertaining to this agreement shall require a longer or different
notice period than any herein specified, the notice period set out herein shall
be deemed amended to conform with the requirements of such statute, law, by-law,
ordinance, regulation or court order.
13.14 The Agent acknowledges that the terms and provisions of this agreement
governing the relationship between the Company and the Agent are unique and may
differ materially from the terms and provisions of any other agreement governing
the relationship between the Company and any other party identified as an agent
of the Company.
13.15 The Agent also acknowledges that the Company is not an educational
institution in Canada, within the meaning ascribed to the term, "educational
institution in Canada", set out in paragraph 118.5(1) of the INCOME TAX ACT,
R.S.C. 1985, c. 1 (Fifth Supp.), as amended.
13.16 The Agent hereby acknowledges that:
(a) the Agent has had adequate opportunity to consult and has
actually consulted independent legal counsel regarding the
legal meaning and potential consequences of this agreement,
and the performance of his or her obligations under the
agreement,
(b) the Agent, or if the Agent is not an individual, the person
executing this agreement on behalf of the Agent, is at least
nineteen (19) years of age as of the date upon which he or she
is executing this agreement, and
(c) the Agent has not consulted with or obtained legal advice from
the law firm of Xxxxxx Xxxxx, Corporate Commercial Lawyers, R.
Xxxxx Xxxxxx Personal Law Corporation, M. Xxxxx Xxxxx Law
Corporation, R. Xxxxx Xxxxxx, Barrister and Solicitor, or M.
Xxxxx Xxxxx, Barrister and Solicitor, and the Agent shall be
forever estopped from contending otherwise.
IN WITNESS WHEREOF the parties have executed this agreement by their duly
authorized signatories as of the day and year first above written.
SPORG CORPORATION
per:
-----------------------------------
Authorized Signatory
---------------------------------------------
THE CORPORATE SEAL of
REGISTRATION MASTERS LTD. was
hereunto affixed in the presence of:
c/s
--------------------------------------
Xxxxxxxxx Good - President
20
LIST OF SCHEDULES
Schedule "A" Commission
Schedule "B" Rules
Schedule "C" Sales Quotas
Schedule "D" Form of Marketing and Sales Sub-Agency
Agreement
21
SCHEDULE "A"
COMMISSION
1. From November 15, 2001 (the "Effective Date") until November 14, 2002,
a commission shall be paid by the Company to the Agent equal to the sum
of Sixty Five per cent (65%) of Passport Fees originating in the
Territory and Sixty Five per cent (65%) of Registration Revenue. During
each subsequent year of the Term or any Renewal Term commencing on
November 15th and ending on the next ensuing November 14th, the Company
shall pay to the Agent a commission equal to Twenty Five per cent (25%)
of Passport Renewal Fees and Registration Revenue originating in the
Territory.
2. If, during the period from the Effective Date until November 14, 2002,
or during any one-year period thereafter:
(a) either five hundred (500) new Passports or One Hundred Seventy
Five Thousand (175,000) new registrations are sold in the
Territory, or both, the Agent shall receive an additional sum
equal to five per cent (5%) of the Registration Revenue
derived from the sale of new registrations sold in the
Territory during such period or year, as the case may be (a
"Bonus");
(b) either one thousand (1,000) new Passports or Three Hundred
Fifty Thousand (350,000) new registrations are sold in the
Territory, or both, the Agent shall receive, in addition to
any Bonus, an additional sum equal to five per cent (5%) of
the Registration Revenue derived from the new registrations
sold in the Territory during such period or year, as the case
may be (a "Bonus Supplement").
3. All capitalized terms in this schedule, unless otherwise expressly
defined herein, shall have the respective meanings ascribed to them in
the Marketing and Sales Agency Agreement between SPORG Corporation and
Registration Masters Ltd., dated November 15, 2001, to which this
schedule is attached.
4. Notwithstanding paragraphs 1 and 2 of this Schedule "A", no Bonus or
Bonus Supplement shall be paid by the Company to the Agent in respect
of any Passport or registration unless as a pre-requisite to the
issuance of that Passport or the recording of that registration a
discreet financial transaction calculated by reference only to the sale
of that particular Passport or recording of that registration occurs.
22
SCHEDULE "B"
RULES
23
SCHEDULE "C"
SALES QUOTAS
From the Effective Date until the 25,000 new registrations from which
first anniversary of the Effective the Company derives revenue (each of
Date, less a day: which shall hereinafter be called a
"Fee Registration", and
collectively, "Fee Registrations")
From the first anniversary of the Effective Date until the second 30,000 Fee
Registrations anniversary of the Effective Date, less a day:
From the second anniversary of the Effective Date until the first 35,000 Fee
Registrations anniversary of the Effective Date, less a day:
24
SCHEDULE "D"
THIS AGREEMENT is made as of ______________ the day of__________________ , 200__
AMONG:
SPORG CORPORATION, a corporation duly incorporated under the
laws of the State of Nevada, U.S.A. and having an office at P.
O. Xxx 00000, Xxxxx 0000, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx.
Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
Facsimile Telecopier Number: (000) 000-0000
Electronic Mail Address: xxxx@xxxxx.xxx
(hereinafter called the "COMPANY")
OF THE FIRST PART
AND:
REGISTRATION MASTERS LTD., a British Columbia company having
an office at Second Floor, 0000 - 000xx Xxxxxx,, Xxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
(hereinafter called the "AGENT")
OF THE SECOND PART
AND:
(hereinafter called the "SUB-AGENT")
OF THE THIRD PART
--------------------------------------------------------------------------------
MARKETING AND SALES SUB-AGENCY AGREEMENT
--------------------------------------------------------------------------------
WHEREAS:
A. The Company has created and developed a unique Internet-distributed software
engine to facilitate the registration of members of Passport Holders (as such
term is hereinafter defined) and is in the business of software applications
development and licensing, owning, enhancing, operating and selling
Internet-distributed membership registration services to such Passport Holders
through the Company's WEB sites located at the Internet addresses, "Xxxxx.xxx"
and "Xxxxx.xx" (the "PRODUCT");
25
B. The Company is the owner of and controls the licensed use of the Internet
addresses, "Xxxxx.xxx" and "Xxxxx.xx", the trade names, "SPORG", "Xxxxx.xxx" and
"Xxxxx.xx", and all trade marks (the "TRADE MARKS") used in connection
therewith;
C. By a Marketing and Sales Agency Agreement dated March 15, 2001 (the "AGENCY
AGREEMENT"), the Company appointed the Agent as its agent to assist the Company
in marketing and selling Internet-distributed membership registration services
to Passport Holders (as such term is hereinafter defined) through the Company's
WEB sites located at Internet addresses, "Xxxxx.xxx" and "Xxxxx.xx" (the
"PRODUCT") and providing non-technical customer support for the Company's
customers in the Provinces of Alberta and British Columbia, Canada (the
"Territory");
D. The Agent requires a representative to assist the Agent in performing its
obligations under the Agency Agreement (the "OBLIGATIONS"), the Sub-Agent is
prepared to do so, and the Agent and Sub-Agent propose to enter into an
agreement pursuant to which the Sub-Agent will be appointed as a representative
to assist the Agent in performing the Obligations (the "APPOINTMENT");
E. It is a condition of appointment of the Agent by the Company as its agent in
the Territory that the Company must have granted its consent in writing to the
appointment of any sub-agent whose responsibilities include assisting the Agent
in performing its Obligations before such appointment takes effect; and
F. As a condition of granting its consent to the appointment of the Sub-Agent by
the Agent, the Company requires the Sub-Agent to enter into an agreement with
the Company and the Agent pursuant to which the Sub-Agent undertakes to perform
and observe certain obligations relating to confidentiality, non-competition,
protecting the Company's proprietary rights to the Company's trade names,
Internet sites, Trade Marks and goodwill and other matters as more particularly
set out hereinafter,
NOW THEREFORE THIS AGREEMENT WITNESSETH that in order to induce the Company to
grant its consent to the appointment of the Sub-Agent by the Agent to assist the
Agent in performing the Obligations, the Sub-Agent hereby covenants and agrees
as follows:
1.01 The Sub-Agent acknowledges that:
(a) the Company has granted to the Agent a licence only, upon the
terms and conditions therein set out, to use and display the
Company's Trade Marks and trade names, but only in connection
with the sale of the Product;
(b) nothing in the Agency Agreement confers upon the Agent any
right, title or interest in or to the Trade Marks, Internet
sites, trade names or goodwill of the Company;
26
(c) the Sub-Agent's involvement in selling the Product in the
Territory is derived entirely from the Sub-Agent's contractual
relationship with the Agent and is not derived from the
Sub-Agent's contractual relationship with the Company herein
created,
(d) the Sub-Agent is not entitled independently to remit orders
for the Product to the Company, unless expressly authorized in
writing by the Agent to do so on the Agent's behalf and
subject to all terms and provisions of the Agency Agreement
pertaining thereto;
and covenants and agrees:
(e) to observe all rules established by the Company from time
to time pursuant to the Agency Agreement as if the Sub-Agent
were the Agent. Without limiting the generality of the
foregoing, the Sub-Agent shall comply with those rules set out
in Schedule "A" annexed hereto, which rules may be
modified from time to time in the sole and unfettered
discretion of the Company, upon thirty (30) days' notice in
writing to the Agent;
(f) to comply with and observe the provisions of all statutes and
regulations in force in the Territory including, without
limitation, all statutes and regulations pertaining to the
collection, management and distribution of data regarding
individuals and, in particular, the PERSONAL INFORMATION
PROTECTION AND ELECTRONIC DOCUMENTS ACT, S.C. 2000, c. 5,
amendments thereto and regulations thereunder; and
(g) that, upon the expiry or termination of the principal-agent
relationship between the Company and the Agent created by the
Agency Agreement, the Sub-Agent shall deliver and surrender up
to the Company all operations and other manuals, advertising
material, training materials, Trade Marks, trade names and the
possession of any physical objects other than supplies bearing
or containing any of same and Sub-Agent shall not thereafter
use any of the same, and Sub-Agent hereby acknowledges and
agrees that ownership of all such items is and shall at all
times remain vested in the Company.
2.00 RELATIONSHIP AMONG THE PARTIES
2.01 Nothing herein contained shall constitute the Sub-Agent the legal
representative of the Company for any purpose whatsoever and the Sub-Agent is
not authorized or empowered to assume or to create any obligation on behalf of
the Company or to bind the Company in any manner.
2.02 Nothing in this agreement is intended to create an employment relationship
between the Company and the Sub-Agent, the Sub-Agent hereby acknowledges that no
such relationship has been created and the Sub-Agent shall be forever estopped
from contending otherwise..
27
2.03 Nothing in this agreement is intended to create a franchisor-franchisee
relationship between the Company and the Sub-Agent. The Sub-Agent hereby
acknowledges that no such relationship has been created hereby and that in
consequence, the Sub-Agent will enjoy no rights which may be conferred upon
franchisees in such relationships by the securities or franchise legislation of
the jurisdiction in which the Sub-Agent resides or carries on business and the
Sub-Agent shall be forever estopped from contending otherwise.
3.00 NON-COMPETITION
3.01 During the term of the Appointment and for a period of three (3) years
thereafter, within the Territory and any other territory in which the Company
has entered into an agreement substantially similar to the Agency Agreement with
another person, firm or entity identified therein as the Company's agent in that
territory, the Sub-Agent shall not sell, market, promote, manufacture or
distribute any services deemed by the Company or the Agent to be competitive
with the Product, nor shall the Sub-Agent be connected in any manner with any
person, firm or entity who or which sells, markets, promotes, manufactures or
distributes any products deemed by the Company or the Agent to be competitive
with the Product.
3.02 The Sub-Agent shall not employ or solicit employment of any employee of the
Company, the Agent or its affiliates or any other agent of the Company without
the prior written consent of the Company and the Agent, such consent not to be
unreasonably or arbitrarily withheld. The Sub-Agent may not hire any ex-employee
of the Company, the Agent or any of their affiliates or of any other agent of
the Company without the prior written consent of the Company, such consent not
to be unreasonably or arbitrarily withheld.
4.00 CONFIDENTIALITY AND NON-CIRCUMVENTION
4.01 The Sub-Agent acknowledges that during the course of his association with
the Agent, he has or may have access to or become acquainted with confidential
technical or business information relating to the business affairs of the
Company or the Agent (hereinafter called the "CONFIDENTIAL INFORMATION"), in
particular the contacts, sources of supply and customers of the Company and the
Agent, which have not been disclosed by the Company or the Agent to the general
public and which the Company or Agent desires to keep confidential. The
Sub-Agent agrees to retain in strictest confidence, except as agreed in writing
by the Company and the Agent, such Confidential Information.
4.02 In handling the internal flow of material regarding the Confidential
Information, the Sub-Agent shall take all reasonable precautions and exact all
necessary non-disclosure and non-competition obligations from his officers,
employees, agents and persons receiving any Confidential Information on behalf
of or from the Agent to ensure that such information is kept confidential and
managed in accordance with the terms of this agreement. A list of all persons,
firms or entities to whom such information is disclosed, together with copies of
all agreements made with those persons, firms or entities, shall be provided to
the Agent upon five (5) days' notice in writing.
4.03 The Sub-Agent shall not directly or indirectly contact, deal with or
otherwise become involved in any transaction with, nor divert or attempt to
divert by solicitation or any other means, the contacts, sources of supply or
customers of the business of the Company or
28
the Agent, and the Sub-Agent shall not use any Confidential Information for any
purpose other than the consummation of business transactions between a purchaser
and the Company.
4.04 The Sub-Agent acknowledges that it would be difficult to measure damages to
the Company from any breach of the covenants contained herein and further that
money damages may be an inadequate remedy for any such breach, and, if an
adequate remedy, so substantial as to be unenforceable. Therefore, the Sub-Agent
agrees that, in addition to any other remedy to which the Company may be
entitled on a breach hereof, the Company shall be entitled to obtain injunctive
or other relief in order to restrain any breach by the Sub-Agent without the
necessity of showing or proving any actual damage sustained.
4.05 The provisions contained in this section 4.00 shall survive the termination
of this agreement.
5.00 INDEMNITY BY THE SUB-AGENT
5.01 The Sub-Agent covenants to indemnify and save harmless the Company from any
loss, costs or damages the Company or Agent may suffer or incur by reason of:
(d) the negligent or dishonest acts of the Sub-Agent, his servants
or employees, or
(e) any of the Sub-Agent, his, servants or employees exceeding the
Sub-Agent's authority, or
(f) any failure by the Sub-Agent to perform any of his obligations
hereunder.
6.00 TERMINATION OR EXPIRY OF APPOINTMENT
6.01 If the Appointment is terminated for any reason the Sub-Agent shall
forthwith deliver to the Agent all copies of any information relating to
customers of the Company or Agent known to the Sub-Agent and a list of
outstanding negotiations with customers or potential customers of the Product
updated to the date of termination showing the following information:
(a) name of customer or potential customer and contact person;
(b) particulars of Product under negotiation;
(c) particulars of the business relationship between the Sub-Agent
and a customer or potential customer;
(d) anticipated order date, in the case of a potential customer;
and
(e) approximate value of order, in the case of a potential
customer.
6.02 The Sub-Agent acknowledges that, if the Appointment expires or is
terminated for any reason whatsoever, the Company and Agent will suffer damages
if Sub-Agent does not discontinue forthwith its use of the Trade Marks, the
Company's trade names, and the
29
Company's copyrights, trade secrets, systems, methods of operation, and goodwill
or any of same which are confusingly similar to or colourably imitative of those
used by the Company in the conduct of its business, and that in addition to any
other remedy for which this agreement provides or which is available to the
Company at law or equity, the Company shall have the right to claim and recover
damages from Sub-Agent for such failure to discontinue. For the purpose of
calculating those damages, the parties hereto agree that for each day subsequent
to such expiry or termination that Sub-Agent operates his business without
having complied with the aforesaid obligations to discontinue, the sum of Five
Hundred Dollars ($500.00) per day shall be recoverable by Company as liquidated
damages in respect of such failure to discontinue and that such liquidated
damages constitute a reasonable pre-estimate of the damages to be sustained by
the Company in such event.
6.03 Upon expiry or termination of the Agency Agreement or the Appointment for
any reason whatsoever, the Company may, if the Agent does not do so, execute in
Sub-Agent's name and on its behalf, any and all documents necessary in the
Company's judgment to end and cause the discontinuance of the Sub-Agent's use of
the Trade Marks, trade name and copyrights owned by the Company or its
affiliate, and the Company is hereby irrevocably appointed and designated as the
Agent's and the Sub-Agent's attorney-in-fact so to do.
6.04 The rights and remedies of the Company hereunder are cumulative and no
exercise or enforcement by the Company of any right or remedy hereunder shall
preclude the exercise or enforcement by the Company of any other right or remedy
hereunder or which the Company is otherwise entitled by law or equity to
enforce.
7.00 INTELLECTUAL PROPERTY
7.01 The Sub-Agent acknowledges, covenants and agrees that all goodwill and
ownership rights created or arising from the use by the Sub-Agent of the Trade
Marks, trade names, and the Company's system, methods of operation, format and
the goodwill thereof pursuant to this agreement and of any adaptations thereof
designated or approved by the Company in writing from time to time hereunder
shall accrue solely to the Company and that now and hereafter the Sub-Agent
shall assert no claim to any goodwill or ownership of same by virtue of the
licensed use of the Trade Marks and trade names or by virtue of its relationship
hereby created with the Company nor will it dispute or impugn the validity of
same or the rights of the Company thereto, or do or assist others to do or
permit any act or thing to be done in derogation of same. The Sub-Agent
acknowledges that by reason of the unique nature of the Company's systems,
methods of operation and format and the Company's aforesaid property rights and
by reason of the Sub-Agent's knowledge of and association with the Company's
business during the term of the Appointment, the aforesaid covenants, during the
term of the Appointment and thereafter, are reasonable and commensurate for the
protection of the legitimate business interests and expectations of the Company,
its affiliates and other agents appointed by the Company or its affiliates from
time to time. The Sub-Agent further acknowledges the validity and ownership by
the Company of the Internet site names, "Xxxxx.xxx" and "Xxxxx.xx" and agrees
that the right to those Internet site names are and shall remain the absolute
property of the Company, subject to termination thereof by the relevant Internet
site registration authority. Finally, the Sub-Agent acknowledges the validity
and ownership of the Company's copyright in all materials supplied by the
Company or the Agent to the Sub-Agent in which copyright may be asserted,
whether printed or electronically
30
accessed, and agrees that copyright in such materials (the "COPYRIGHT") is and
shall remain the absolute property of the Company.
7.02 The Sub-Agent shall not in any way do anything to infringe, harm or contest
the validity of the Trade Marks or Copyright. The Sub-Agent shall promptly
notify the Agent of any and all infringements, imitations, illegal use or misuse
of the Trade Marks or Copyright of which the Sub-Agent becomes aware.
7.03 The Sub-Agent agrees that he shall not remove or alter the Trade Marks
which are affixed to the Products or affix any additional trade marks or trade
designations to any of the Products which bear the Trade Marks, without the
prior written consent of the Company.
7.04 The Sub-Agent agrees that he shall not engage in any unfair trade practices
or make any false or misleading statements or representations in advertising,
printed material or otherwise with respect to any of the Products bearing the
Trade Marks.
7.05 Following expiry or termination of the Appointment or expiry or termination
of the Agency Agreement for any reason whatsoever, the Sub-Agent agrees not to
register or use any of the Trade Marks, or any trade marks or trade names which
are the same as or confusingly similar to the Trade Marks. This obligation shall
survive the expiry or termination of the Appointment.
8.00 MISCELLANEOUS
8.01 In this agreement and the schedules hereto, the following terms shall have
the meanings respectively ascribed to them below:
"PASSPORT" means the access number or password issued by the Company
evidencing the current entitlement of its holder, by accessing one of
the Company's internet sites, to use the proprietary tools and
utilities developed by the Company to facilitate the registration or
renewal of registration of participants in programmes or activities
offered, operated or sponsored by, members or customers of and
potential participants in programmes or activities offered, operated or
sponsored by, members or customers of that Passport Holder;
"PASSPORT HOLDER" means an individual, body corporate or politic, a
partnership, joint venture, or other collective entity recognized by
law that holds a Passport;
In addition, all terms otherwise defined herein shall have the same
respective meanings ascribed to them in this agreement where used in
the schedules annexed hereto.
8.02 Any notice required or permitted to be given to any of the parties to this
agreement shall be in writing and may be sent by facsimile telecopier, or may be
delivered or mailed by prepaid registered post or personally delivered to the
party to which notice is to be given at the address or facsimile number of such
party above stated, or at another address or facsimile number designated by that
party in writing prior to the giving of such notice, and any such notice shall
be deemed to have been given and received by the party to whom it was addressed
on delivery, if delivered personally or by facsimile telecopier, and if mailed,
three (3) business days following the mailing thereof.
31
8.03 If there is an interruption in normal mail service due to strike, labour
unrest or other cause at or before the time a notice is mailed, the notice shall
be sent by fax, telegram or will be delivered.
8.04 Neither this agreement nor any of the rights, benefits or obligations
arising therefrom may be assigned by the Sub-Agent without the prior written
consent of the Company and the Agent.
8.05 This agreement and all schedules to this agreement contain the entire
agreement among all of the parties hereto relating to the subject matter
contained herein, any course of prior dealings or usage of the trade
notwithstanding, and supersedes all other agreements, oral or written,
heretofore made among all of those parties. For greater particularity, the
Appointment may contain agreements between those parties, but not among those
parties and the Company, relating to the subject matter hereof.
8.06 No alteration, modification, waiver or other change to this agreement shall
be binding upon the parties unless in writing and signed by all parties hereto.
8.07 Waiver by any party of the strict performance of any term or condition in
this agreement shall not of itself constitute a waiver or abrogation of such
term or condition or operate as a waiver or acceptance of any subsequent breach.
The failure of any party to assert any claim for any of its rights or remedies
under this agreement in timely fashion shall not be construed as a waiver of any
such claim and shall not serve to modify, alter or restrict such party's right
to assert such claim at any time thereafter.
8.08 If any provision of this agreement is determined by any court of competent
jurisdiction to be illegal or unenforceable, it will be considered separate and
severable from this agreement and the remaining provisions of this agreement
will remain in force and be binding upon the parties as though the illegal or
unenforceable provision had never been included.
8.09 The headings in this agreement are for convenience of reference only and
shall not affect the interpretation of this agreement.. In this agreement, the
words, "herein", "hereof" and "hereunder" and other words of similar import
refer to this agreement as a whole and not to any particular section or other
subdivision of this agreement or schedule to this agreement. In this agreement,
the singular of any term includes the plural, and vice versa, the use of any
term referring to a particular gender is equally applicable to any other gender
and, where applicable, to a body corporate, the word, "or", is not exclusive and
the word, "including", is not limiting, whether or not non-limiting language,
such as "without limitation" or "but not limited to" or words of similar import,
is used with reference thereto;
8.10 This agreement shall be governed by and interpreted in accordance with the
laws of the Province of British Columbia and the laws of Canada applicable
therein.
8.11 This agreement shall enure to the benefit of and shall be binding on the
parties hereto and their successors and permitted assigns.
32
8.12 If any statute, law, by-law, ordinance or regulation promulgated by any
competent authority with jurisdiction over the parties or this agreement or any
court order pertaining to this agreement shall require a longer or different
notice period than any notice period herein specified, the notice period set out
herein shall be deemed amended to conform with the requirements of such statute,
law, by-law, ordinance, regulation or court order.
13.17 The Sub-Agent hereby acknowledges that:
(d) the Sub-Agent has had adequate opportunity to consult and has
actually consulted independent legal counsel regarding the
legal meaning and potential consequences of this agreement,
and the performance of his or her obligations under the
agreement,
(e) the Sub-Agent, or if the Sub-Agent is not an individual, the
person executing this agreement on behalf of the Sub-Agent, is
at least nineteen (19) years of age as of the date upon which
he or she is executing this agreement, and
(f) the Sub-Agent has not consulted with or obtained legal advice
from the law firm of Xxxxxx Xxxxx, Corporate Commercial
Lawyers, R. Xxxxx Xxxxxx Personal Law Corporation, M. Xxxxx
Xxxxx Law Corporation, R. Xxxxx Xxxxxx, Barrister and
Solicitor, or M. Xxxxx Xxxxx, Barrister and Solicitor, and the
Agent shall be forever estopped from contending otherwise.
IN WITNESS WHEREOF the parties have executed this agreement by their duly
authorized signatories as of the day and year first above written.
SPORG CORPORATION
per:
-----------------------------------
Authorized Signatory
THE CORPORATE SEAL of
REGISTRATION MASTERS LTD. was
hereunto affixed in the presence of:
c/s
--------------------------------------
Xxxxxxxxx Good - President
SIGNED, SEALED AND DELIVERED by
the Sub-Agent in the presence of:
------------------------------------
Signature of Witness
---------------------------------
------------------------------------
Name of Witness (please print)
------------------------------------
Address of Witness (please print)
------------------------------------
------------------------------------
Occupation of Witness (please print)
33
LIST OF SCHEDULES
Schedule "A" Rules
34
SCHEDULE "A"
RULES
