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Exhibit 10.11
AGREEMENT
This Agreement is between Plane Sight, Inc., (Plane Sight) and Level Best Golf,
Inc. (LBG), and concerns a golf training device disclosed in U.S. Patent No.
5,544,888, as well as existing and future improvements thereof, all of which is
hereinafter referred to as "the PRODUCT."
Plane Sight and LBG hereby acknowledge that Plane Sight is the sole and
exclusive owner of the intellectual property rights of the PRODUCT.
By this Agreement, Plane Sight grants certain rights to LBG in the PRODUCT under
the following conditions:
1) Plane Sight hereby grants LBG a license to make, use and sell the PRODUCT
through retail chains located within the U.S.A. and its territories. Plane Sight
retains the exclusive right to market the PRODUCT through other channels, such
as by mail order and the Internet, and through green grass pro shops and
off-course golf shops in the U.S.A. and its territories. Plane Sight also
retains the exclusive right to market the PRODUCT in all markets outside of the
U.S.A and its territories. However, LBG will be allowed to pursue these same
markets on a nonexclusive basis provided their efforts are coordinated with and
approved in writing by Plane Sight. If LBG can establish a substantial
representative network to service these markets, Plane Sight agrees to consider
granting LBG exclusive rights to these markets.
2) LBG will evaluate its retail store placement of the PRODUCT into the direct
response broadcast channel of distribution. The decision to pursue this
distribution strategy will be solely at the discretion of LBG.
3) LBG is responsible for all manufacturing, packaging and marketing costs
associated with their efforts, and agrees to permit Plane Sight to independently
and directly purchase the PRODUCT and its components from LBG at cost plus 20%
for sales by Plane Sight.
4) LBG agrees to pay Plane Sight a royalty of ten (10) percent of Net Collected
Sales on a quarterly basis, but not less than $3.00 per unit. As used herein,
Net Collected Sales is defined as gross sales minus returns, allowances, rebates
and discounts. Royalty payments are to be made within 30 days of the close of
each calendar quarter. Any royalty payment not received when due shall bear
interest at the rate of 1.5% per month. LBG agrees to provide Plane Sight with a
complete statement of orders placed by LBG from its manufacturing sources, and a
complete statement of sales of the PRODUCT, each on a quarterly basis. These
statements shall be furnished to Plane Sight regardless of whether any Products
were sold during the quarter or whether any actual royalty payment is owed.
Plane Sight has the right, at their own expense, to audit the sales records and
receipts on an annual basis.
5) Plane Sight is responsible for any and all payments to any partner or agents
of Plane Sight who may be involved with the PRODUCT.
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6) Plane Sight is responsible for any costs associated with maintaining any
patents owned by Plane Sight at the time of the signing of this Agreement, and
must provide a copy of all of the aforementioned to LBG for their files.
7) The term of this agreement is for thirty-six (36) months from the first
shipment date of the PRODUCT to any retail account. LBG agrees to maintain sales
of the following minimum quantities:
First Twelve Months 25,000 units
Second Twelve Months 40,000 units
Third Twelve Months 60,000 units
Plane Sight shall have the right to terminate this Agreement if LBG fails to
make a first shipment within six (6) months of the signing of this Agreement. In
the event that LBG fails to maintain the above minimum quantities for any one of
the above-stated twelve-month periods, Plane Sight shall have the right to
terminate this Agreement.
8) Plane Sight shall have the right to immediately terminate this Agreement by
giving written notice to LBG in the event that LBG files a petition in
bankruptcy or is adjudicated a bankrupt or insolvent, or makes an assignment for
the benefit of creditors or an arrangement pursuant to any bankruptcy law, or if
LBG discontinues or dissolves its business or if a receiver is appointed for LBG
or for LBG's business.
9) LBG shall, throughout the term of the Agreement, obtain and maintain at its
own cost and expense from a qualified insurance company licensed to do business
in Indiana, standard Product Liability Insurance naming Plane Sight and its
officers, directors, employees, agents, and shareholders, as an additional
insured. This policy shall provide protection against all claims, demands, and
causes of action arising out of any defect or failure to perform, alleged or
otherwise, of the Product or any material used in connection therewith or any
use thereof. The amount of coverage shall be five million U.S. dollars
($5,000.000). The policy shall provide for notice to Plane Sight from the
insurer by registered or certified mail, return receipt requested, in the event
of any modification, cancellation, or termination thereof. LBG agrees to furnish
Plane Sight a certificate of insurance evidencing same within 60 days after
execution of this Agreement and, in no event, shall LBG manufacture, distribute,
or sell the Product prior to receipt by Plane Sight of such evidence of
insurance.
10) Governing Law - This Agreement shall be governed and construed in all
respects in accordance with the laws of the State of Indiana. All disputes
hereunder shall be resolved in the applicable state or federal courts of
Indiana. Plane Sight and LBG consent to the jurisdiction of such courts, agree
to accept service of process by mail, and waive any jurisdictional or venue
defenses otherwise available.
11) Binding Effect - This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their respective successors and permitted
assigns.
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12) Entire Agreement - This Agreement constitutes the entire understanding and
agreement between the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous negotiations, understandings and
agreements, oral or written, between the parties with respect to the subject
matter hereof.
13) Amendment - This Agreement may not be amended, except by written instrument
executed by the respective duly-authorized officers of the parties.
14) Assignment - Neither party may assign this Agreement to any third party
without the express prior written consent of the other party.
The parties have caused this Agreement to be executed in duplicate by their
respective duly-authorized officers, with the effective date of this Agreement
being the last date shown below.
/s/ Xxxx Xxxxx /s/ Plane Sight, Inc.
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for Level Best Golf, Inc. for Plane Sight, Inc.
Xxxx Xxxxx /s/ J. Xxxxxx Xxxxxxxxxx
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Name (printed) J. Xxxxxx Xxxxxxxxxx
Title: Chief Operating Officer Title: President
Date: 1/25/97 Date: 1/20/97
