EXHIBIT 10.10 E-Marketing Agreement with Current Media Group, LLC
E-MARKETING AGREEMENT
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This E-Marketing Agreement (the "Agreement") is made and entered into
effective as of the 27th day of June, 2002, by and between HUMITECH
INTERNATIONAL GROUP, INC., a Nevada corporation, whose principal office is
located at 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 75001(hereinafter
referred to as the "Company"), and Current Media Group LLC., a Utah Limited
Liability Company, whose principal office is at 0000 Xxxx Xxxx Xxxx, Xxxx Xxxx,
Xxxx 00000 (hereinafter referred to as "Contractor").
R E C I T A L S:
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A. The Company currently markets and distributes certain Products,
under the name FoodSoFresh (as hereinafter defined) made under and covered by
various United States and foreign patents and marketed under various United
States and foreign registered and common law trademarks.
B. Whereas the Master E-Marketing Agreement provides that Manufacture
will provide the Contractor with all of the Products, Contractor will need to
satisfy the Company's obligations to sub-Contractor and such other obligations
as the Company may have to other sub-Contractors of the Company.
C. The Company desires to appoint the Contractor, and the Contractor
desires to act for the Company, as its exclusive Contractor of Products in the
Territory (as hereinafter defined).
AGREEMENT
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In consideration of the premises and mutual covenants, warranties and
representations herein contained, the Company and the Contractor hereby agree as
follows:
ARTICLE 1.
DEFINITIONS
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SECTION 1.1. DEFINITIONS. For purposes of this Agreement, the following
definitions shall apply:
SECTION 1.1.1. "PRODUCTS" shall mean those products with the
FoodSoFresh name and marketed and distributed by the Company which are
listed in EXHIBIT A attached hereto.
SECTION 1.1.2. "TERRITORY" shall mean anywhere in the world
for sales over the Internet.
ARTICLE 2.
CONTRACTORSHIP
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SECTION 2.1. APPOINTMENT AND GRANT. Upon and subject to the terms and
conditions set forth in this Agreement, the Company appoints the Contractor, and
the Contractor agrees to act, as the Company's exclusive Contractor of the
Products in the Territory. The Company shall sell the Products to the
Contractor, and the Contractor shall purchase the Products from the Company for
resale, leasing, marketing or other distributions solely within the Territory
except as otherwise set forth herein.
SECTION 2.2. CONTRACTOR FEE, INITIAL MATERIALS AND SPECIAL ARRANGEMENTS
Upon the execution hereof, Contractor shall pay to the Company the fee of
$500,000 as consideration for the Contractor's right to market the Products. The
fee is to be paid with $20,000 down and then quarterly payments of $120,000
each. Further, Contractor shall be entitled to the following items, privileges
and fees:
SECTION 2.2.1 The Company shall deliver to the party that has
purchased Products from the Contractor the number of home panels (model
number HT-100) that such party has purchased, and the Contractor shall
set up and maintain a web site on the World Wide Web.
SECTION 2.2.2. Contractor's rights to sell home panels (model
number HT-100) shall be exclusive only on Internet sales, but the
Company shall provide Contractor with whatever supply of home panels as
are ordered by Contractor.
SECTION 2.3. METHOD AND TERMS OF ORDERING. All orders from the
Contractor for the Products shall be addressed to the Company and shall
be subject to acceptance by the Company. All purchase orders so
concluded shall be subject to the standard conditions of sale of the
Company except that in the event of any conflict between such standard
conditions of sale and the provisions of this Agreement, the provisions
of this Agreement shall prevail.
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SECTION 2.3.1. The Company agrees that it shall endeavor to
fill accepted orders as promptly as practicable, subject, however, to
delays caused by transportation conditions, labor or material
shortages, strikes, fires or any other cause beyond Company's control.
SECTION 2.3.2. Contractor expressly releases Company from
liabilities for any loss or damage arising from the failure of Company
to timely fill any orders of Contractor due to the failure of
Manufacture to timely deliver Products to the Company; provided however
the Company shall use its best efforts to see that an adequate supply
of Products are received from Manufacture as will allow Company to meet
its obligation to Contractor hereunder.
SECTION 2.4. PRICING. Contractor shall be entitled to purchase the
Products from the Company at a price equal to the suggested wholesale price of
the Products from time to time published by the Company. Upon not less than
thirty (30) days written notice to the Contractor, the Company shall be entitled
to vary its published suggested wholesale prices and/or the discount(s) set
forth in EXHIBIT C. All such prices are F.O.B. shipping point. Notwithstanding
the foregoing the Company may only increase the price of Products if Manufacture
increases the price the Company has to pay to Manufacture for the Products and
in no event shall any price of any Products be increased by more than five
percent (5%) in any Twelve month period.
SECTION 2.5. PAYMENT. The Contractor agrees to pay all valid invoices
rendered by the Company.
SECTION 2.6. SHIPMENT. The Company shall supply the Products ordered by
Contractor packaged and crated for shipment. The Company will arrange for
shipment of the Products to the Contractor's purchasers, all costs associated
therewith shall be for Company's account and paid by the Company.
SECTION 2.7. RETURNS. All orders by the Contractor accepted by the
Company and Products shipped with respect thereof shall be deemed final and none
of such Products may be returned to the Company by the Contractor unless the
Contractor shall have detailed to the Company the cause for desire to return
such Products. The Company agrees to accept returns of all Products not
conforming to the express written warranties from time to time in effect with
respect to such Products.
ARTICLE 3.
MARKETING
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SECTION 3.1. CONTRACTOR'S SELLING AND OTHER OBLIGATIONS. The Contractor
shall at its own cost and expense:
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SECTION 3.1.1. Use commercially reasonable endeavors to sell
as a principal the Products in the Territory to the maximum extent;
SECTION 3.1.2. Use commercially reasonable endeavors to create
and maintain a market for the Products in the Territory and enhance the
reputation of the Products and the Company in the Territory;
SECTION 3.1.3. Use commercially reasonable endeavors to assure
that all orders and inquiries for the Products are dealt with in a
timely manner and make all commercially reasonable efforts to obtain
orders for Products from such inquiries;
SECTION 3.1.4. Identify the Company as the source of the
Products in all advertising, promotional materials, installation or
service literature, labels, packaging or other written materials with
respect to the;
SECTION 3.1.5. Keep the Company regularly informed of the
progress and development of the markets for its Products in the
Territory and of all matters helpful to the Company in designing and
producing Products suitable for the Territory and in estimating and
planning for future needs of and sales of the Products in the
Territory;
SECTION 3.1.6. Immediately bring to the attention of the
Company particulars of any improper or wrongful or suspected improper
or wrongful use by another of the patents, trademarks, trade names,
copyrights, emblems, logos, or commercial rights of the Company in the
Products which come to its notice, and join in such action as the
Company shall reasonably consider necessary to defend such rights
including (at the Company's expense) the institution of legal
proceedings;
SECTION 3.1.7. Immediately notify the Company of any inquiry
or order (and full details thereof) received for a sale of the Products
outside the Territory; and
SECTION 3.1.8. Otherwise carry out its obligations hereunder
diligently and at all times act towards the Company and its interests
with the utmost good faith and honesty.
SECTION 3.2. RESTRICTIONS ON CONTRACTOR. Without the express written
consent of the Company, which consent may be withheld without cause, the
Contractor shall not:
SECTION 3.2.1. Except as otherwise provided for herein, seek
orders for any of the Products outside the Territory or sell to any
person who the Contractor knows or has cause to believe proposes to
re-sell any of the Products outside the Territory;
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SECTION 3.2.2. Apply for, seek, obtain, or in any way assist
another to apply for, seek, or obtain any registration or certificate
of use for any trademark, trade name, design, emblem, logo or copyright
which is the same as, similar to, or derived from any trademark, trade
name, design, emblem, logo or copyright used or owned by Company;
SECTION 3.2.3. Either during the term of this Agreement or
thereafter disclose to any person (other than to such of its employees
as necessary for it to fulfill its duties hereunder) any trade secret
or other information of a confidential nature concerning the Company or
its business activities (including, without prejudice to the generality
of the foregoing, customers, suppliers, know-how, costing methods,
price lists, future or planned products) which may come to Contractor's
knowledge owing to its being a Contractor hereunder; or
SECTION 3.2.4. Alter, remove or in any way tamper with any of
the Company's trademarks, trade names or patent numbers on the
Products, except that the Contractor shall have the right to attach to
the Products a plate or label bearing the name and address of the
Contractor indicating that it is the supplier, as principal, of the
Products and is an authorized Contractor in the Territory for the
Company.
SECTION 3.3. PROMOTIONAL ASSISTANCE. In order to assist the Contractor
in performing its obligations to market the Products in the Territory, the
Company shall provide to the Contractor promotional literature concerning the
Products. The Contractor shall have the right to participate in any cooperative
advertising or promotional plan established by the Company for its authorized
Contractors.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
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SECTION 4.1. REPRESENTATIONS OF THE COMPANY. The Company hereby
represents and warrants that:
SECTION 4.1.1. The Company is a corporation organized,
existing and in good standing under the laws of the State of Nevada of
the United States of America, and has full corporate power and
authority to enter into and perform pursuant to this Agreement.
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SECTION 4.1.2. The execution and delivery of this Agreement
and the performance by the Company of its obligations hereunder have
been duly authorized by all requisite corporate actions and no further
corporate approval is required in order to constitute this Agreement as
a binding and enforceable obligation of the Company. The execution and
delivery of this Agreement and performance by the Company of its
obligations hereunder do not and will not violate any provisions of the
Articles of Incorporation or Bylaws of the Company.
SECTION 4.1.3. The Master E-Marketing Agreement is in full
force and effect and no event of default or fact or circumstances which
would with the passage of time would give rise to have been a default
exists with respect thereto.
SECTION 4.1.4. The Company at all times will comply with the
terms and conditions of the Master E-Marketing Agreement such that in
no event shall the Master E-Marketing Agreement ever be terminated as a
result of the Company's default thereunder.
SECTION 4.1.5. The Company shall obtain from Manufacture the
written assurance that the Master E-Marketing Agreement shall be
perpetual in nature and shall not be terminable except as the result of
a default thereunder on the part of either Manufacture or the Company.
SECTION 4.1.6. The Company shall obtain the written assurance
of Manufacture that should the Master E-Marketing Agreement terminate
for any reason that Manufacture will continue to sell the product to
the Contractor hereunder so long as the Contractor is not in default
pursuant to the terms and conditions hereof. Under no circumstances
shall Manufacture sell the Products to any person or entity other than
the Company in the Territory so long as the Contractor continues to
fulfill its obligations hereunder.
SECTION 4.1.7. The Company shall obtain the written commitment
of Manufacture to use its best efforts to preserve the right of
Manufacture to mine the substance, Sorbite, which is the primary
ingredient of the Product.
SECTION 4.2. REPRESENTATIONS OF CONTRACTOR. The Contractor hereby
represents and warrants that:
SECTION 4.2.1. The Contractor is a limited liability company
organized, existing and in good standing under the laws of the state of
Utah first hereinabove set forth and has full company power and
authority to enter into and perform pursuant to this Agreement.
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SECTION 4.2.2. The execution and delivery of this Agreement
and the performance by the Contractor of its obligations hereunder have
been duly authorized by all requisite company action and no further
company approval is required in order to constitute this Agreement as a
binding and enforceable obligation of the Contractor. The execution and
delivery of this Agreement and the performance by the Contractor of its
obligations hereunder do not and will not violate any provisions of the
Contractor's organizational documentation.
SECTION 4.2.3. The Contractor requires no governmental or
other consent to enter into and perform its obligations pursuant to
this Agreement, and no legal provision, statutory or otherwise,
operating in the Territory is contravened by this Agreement or would be
contravened in circumstances contemplated by this Agreement.
ARTICLE 5.
TERM AND TERMINATION
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SECTION 5.1. TERM. The initial term of this Agreement shall commence on
the date hereof, and shall extend for an initial term of five (5) years after
which the Agreement shall automatically renew for consecutive five (5) year
terms unless otherwise terminated as provided for elsewhere herein.
SECTION 5.2. TERMINATION BY COMPANY FOR CAUSE. Without prejudice to any
rights or remedies which the Company may have against the Contractor, the
Company shall be entitled, by notice in writing to the Contractor, to
immediately terminate this Agreement if:
SECTION 5.2.1. The Contractor has a receiver or manager
appointed of its undertaking or assets or goes into liquidation or
enters into any composition or arrangement with its creditors;
SECTION 5.2.2. The Contractor ceases or threatens to cease to
carry on substantially its business;
SECTION 5.2.3. The Contractor fails to comply with any of the
provisions hereof and does not remedy the same within ten (10) days of
being notified of such breach by the Company.
SECTION 5.2.4. The Contractor fails to maintain an aggressive
E-Marketing campaign.
SECTION 5.2.4. The Contractor fails to make quarterly payments
on time, all previous payments will be forfeited.
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SECTION 5.3. OBLIGATIONS BY CONTRACTOR. Without prejudice to any rights
or remedies which the Contractor may have as against the Company, the Contractor
shall be entitled, by notice in writing to the Company to immediately terminate
this Agreement if
SECTION 5.3.1. The Company is unable for any reason to deliver
to the Contractor all product ordered by Contractor.
SECTION 5.3.2. The Company fails to honor the exclusivity of
Contractor's rights to sell the product within the Territory.
SECTION 5.3.3. The Company fails to comply with any of the
provisions hereof and the Company does not remedy the same within ten
(10) days of being notified of such breach by the Contractor.
SECTION 5.4. OBLIGATIONS OF THE PARTIES UPON TERMINATION. Upon
termination of this Agreement for cause by the Company, the Contractor's rights
hereunder shall become non-exclusive but such termination shall not effect the
right or ability of Contractor to continue to service the customers which may
have purchased/leased Products from Contractor. Further, at the Company's
discretion, the Company may continue to afford the Contractor the right to
purchase Product pursuant to the terms and conditions set forth herein, save and
except the exclusivity right with respect to the Product within the Territory
which (as stated hereinabove) shall terminate.
ARTICLE 6.
MISCELLANEOUS PROVISIONS
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SECTION 6.1. ASSIGNMENT. This Agreement may not be assigned by either
party without the prior written consent of the other, which consent shall not be
unreasonably withheld.
SECTION 6.2. RELATIONSHIP OF THE PARTIES. Nothing contained in this
Agreement shall be deemed or construed to constitute or create between the
parties hereto a partnership, association, joint venture or agency.
SECTION 6.3. GOVERNING LAW. This Agreement shall be interpreted and
construed in accordance with the laws of the State of Texas of the United States
of America. This Agreement shall be deemed executed and performable in Dallas,
Dallas County, Texas, United States of America. Any suit or action to enforce or
construe the terms of this Agreement shall be brought in a state or federal
court of competent jurisdiction in Dallas County, Texas, U.S.A.
SECTION 6.4. CONFLICT RESOLUTION. Any controversy, claim or dispute
arising out of or relating to this Agreement or the relationship, either during
the existence of the relationship or afterwards, between the parties hereto,
their assignees, their affiliates, their attorneys, or agents, shall be settled
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in arbitration or mediation, under the procedures of the United States
Arbitration & Mediation. The prevailing party shall be entitled to recover
reasonable attorney's fees and other involved expenses. The Company and
Contractor will share equally the costs of the mediation. The mediation shall be
administered by a mutually agreed upon Dallas based mediator.
SECTION 6.5. SEVERABILITY. Should any term or provision of this
Agreement for any reason be held to be or declared illegal, invalid, void or
unenforceable either in its entirety or in a particular application, the
remainder of this Agreement shall nonetheless remain in full force and effect.
SECTION 6.6. NOTICE. Any notice permitted or required under this
Agreement may be given by certified or registered mail, postage prepaid,
addressed as set forth on the signature page hereto. Any notice so mailed shall
be deemed to have been given or served the fourth day after it is deposited in
the post, appropriately addressed and stamped as set forth herein. Notices may
also be sent by cable, telex or electronic facsimile transmission and, in such
event, shall be deemed received twenty-four (24) hours after dispatched. Any
party may change its address for delivery of notices hereunder at any time by
notice in writing to the other party as provided herein.
SECTION 6.7. NON-WAIVER. The failure by any party to complain of any
act or omission on the part of the other, no matter how long the same may
continue, shall not be deemed to be a waiver by such party of any of its rights
under this Agreement. The waiver by any party at any time, expressed or implied,
of any breach, attempted breach, or default of any provision of this Agreement
shall not be deemed a consent to or waiver of any subsequent breach, attempted
breach or default of the same or any other type. If any action by the Contractor
shall require the consent or approval of the Company, such consent or approval
of the Company to such action on any one occasion shall not be deemed a consent
or approval of any other action on the same or any subsequent occasion.
SECTION 6.8. NUMBER AND GENDER. All terms and words used in this
Agreement, regardless of the number and gender in which they are used, shall be
deemed and construed to include any other number, singular or plural, and any
other gender, masculine or feminine or neuter, as the context or sense of this
Agreement or any paragraph or clause herein may require, the same as if such
words had been fully and properly written in the appropriate number and gender.
SECTION 6.9. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the Company and the Contractor and there are no covenants,
undertakings, or understandings, oral or written, except as herein set forth.
Except as expressly provided herein, the terms and provisions of this Agreement
shall not be altered or modified, enlarged or diminished, except by a writing
signed by the Company and the Contractor.
SECTION 6.10. HEADINGS. The headings of all paragraphs in this
Agreement are inserted for convenience of reference only and shall not affect
the construction thereof.
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SECTION 6.11. SUCCESSORS AND ASSIGNS. This Agreement and the provisions
hereof shall inure to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, administrators, successors and assigns as
permitted herein.
SECTION 6.12. FACSIMILE SIGNATURES PAGE. The parties expressly agree
that the facsimile copies of this Agreement are deemed originals for the purpose
of effecting this Agreement.
BALANCE OF THIS PAGE IS LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first
hereinabove set forth.
COMPANY: HUMITECH INTERNATIONAL GROUP, INC.,
------- a Nevada corporation
By: /S/ XXXXXXX X. XXXXX
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
Notice Address:
---------------
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Fax Number: 000.000.0000
Telephone: 000.000.0000
CONTRACTOR: CURRENT MEDIA GROUP LLC
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By: /S/ XXXX XXXXXX
----------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
Notice Address:
---------------
XX Xxx 000000
Xxxx Xxxx, Xxxx 00000
Fax Number: 000.000.0000
Telephone Number: 000.000.0000
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EXHIBIT A
To
Contractorship Agreement
With
PRODUCTS
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The PRODUCTS covered in this Exclusive E-Marketing Agreement shall include the
following:
1. Humitech home/residential panel (with packaging box) model# HT.100
(exclusive to internet sales only).
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EXHIBIT B
To
Contractorship Agreement
With
TERRITORY
---------
This EXCLUSIVE Territory shall be known as the "_________________ Territory" and
shall include the following State of ______________ counties in total geographic
area except as herein provided:
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ADDENDUM A
To
Contractor Agreement
With
Current Media
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PRICING/DISCOUNT STRUCTURE FOR ANNUAL PURCHASE
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COMMITMENTS AND PAYMENT TERMS
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DISTRIBUTOR SHALL BE ENTITLED TO PURCHASE THE HUMITECH PRODUCTS AT THE FOLLOWING
PRICING RATE:
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Humitech home/residential panel model# HT.100 per order:
Up to 15,000 $18.00/each
15,001-30,000 $17.00/each
30,001-45,000 $16.00/each
45,001-60,000 $15.00/each
60,001-75,000 $14.00/each
75,001-90,000 $13.00/each
100,000+ $12.00/each
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All orders must be placed by Contractor with Company by box
(100-HT.100) quantity and in order to qualify for volume prices all
orders must be submitted in annual order.
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TERMS: ALL PAYMENTS MUST BE MADE AT TIME OF ORDER.
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By: /S/ XXXXXXX X. XXXXX By: /S/ XXXX XXXXXX
-------------------------- --------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxx Xxxxxx
Title: Chief Financial Officer Title: Managing Director
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