MARKETING SERVICES AGREEMENT
This AGREEMENT is made this day 24TH of APRIL, 1998 between HUMATECH, INC.
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hereinafter referred to as "MANUFACTURER" and CMS PARTNERS LTD. AND IT'S
ASSIGNS, 000 X. Xxx 00, Xxxxxxxxxxx, Xxxxx 00000, hereinafter referred to as
"CMS".
I. RECITALS
1.1 HUMATECH, INC. is a manufacturer and/or seller of those products
listed in Attachment "A", incorporated herein by reference, and desires to
secure the services of a marketing specialist to develop resources and products
and to develop and execute programs that will generate sales of MANUFACTURER'S
products with WAL*MART, INC., WAL*MART SUPER CENTERS, AND SAM'S CLUBS divisions
of Wal*Mart Inc., 000 Xxxxxxxxx 0xx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000 in the
United States and International.
1.2 "CMS" desires to secure the exclusive rights to develop resources and
products and to develop and execute programs for MANUFACTURER to WAL*MART, INC.,
WAL*MART SUPER CENTERS AND SAM'S CLUBS.
In consideration of the premises, covenants and undertakings herein
contained, it is hereby agreed as follows:
II. AGREEMENT
2.1 MANUFACTURER shall employ "CMS" as its sole and exclusive marketing
specialist to develop resources and products and to develop and execute programs
to generate sales of MANUFACTURER'S products for delivery to WAL*MART, INC.,
WAL*MART SUPER CENTER AND SAM'S CLUBS.
2.2 Any negotiations by "CMS" for the account of MANUFACTURER shall be
conducted in accordance with such prices, terms and conditions as are specified
by MANUFACTURER.
2.3 Any products or programs developed by "CMS" shall be subject to
MANUFACTURER'S confirmation. "CMS" shall not incur any expenses or enter into
any obligations, without MANUFACTURER'S authorization and direction.
2.4 MANUFACTURER accepts full responsibility for granting credit to
buyers. However, "CMS" shall furnish to MANUFACTURER'S credit department any
information which it may have from time to time concerning the credit standing
of WAL*MART, INC., WAL*MART SUPER CENTER AND SAM'S CLUBS and shall cooperate
fully with the credit department in the qualification and collection of past due
accounts.
2.5 The method of remuneration for "CMS" from MANUFACTURER is a
"Performance Fee", to be negotiated by both parties. See attachment "B",
incorporated herein by reference.
2.6 "CMS", its officers, employees, agents, successors, and assigns, shall
indemnify MANUFACTURER, its officers, employees, agents, successors, and
assigns, against any loss, liability, damage or claim that may occur or arise
due to acts or omissions of "CMS", its officers, employees, agents, successors,
and assigns, in the course of performance of this agreement.
2.7 MANUFACTURER, its officers, employees, agents, successors, and assigns
shall indemnify "CMS", its officers, employees, agents, successors, and assigns,
against any loss, liability, damage or claim that may occur or arise due to acts
or omissions of MANUFACTURER, its officers, employees, agents, successors, and
assigns, including injuries to persons (including death) and damage to or
destruction of property caused by any products of MANUFACTURER, including
products and/or packaging proposed by "CMS" and accepted or approved by
MANUFACTURER.
2.8 The laws of the State of Texas shall govern the application and
interpretation of this agreement, and all litigation pursuant to this agreement
shall be conducted in Dallas County of the State of Texas. Likewise, the party
which prevails in any legal proceeding hereunder shall be entitled to have its
reasonable attorney fees and court costs, at trial and on appeal, paid by the
losing party.
2.9 If the parties hereto shall comply with all the terms and conditions
of this agreement, then this agreement shall begin on the date hereof, and
thereafter shall continue in full force and effect, provided that either party
may terminate this contract by giving one year's (365 days) written notice to
the other party of its desire to terminate this agreement. Upon termination of
the Agreement for any reason, "CMS" shall be entitled to all fees, as defined
herein, which qualify for remuneration to "CMS" hereunder, and which are dated
or communicated to MANUFACTURER prior to the effective date of termination.
2.10 "CMS" shall deliver to MANUFACTURER all papers and other materials related
to the work performed under this agreement upon termination thereof, except that
"CMS" reserves the right to retain any creative materials solely developed by
"CMS" which are not related in their entirety to the work performed by "CMS"
under this agreement.
2.11 MANUFACTURER shall assume liability for any non-cancelable contracts
made by "CMS" in accordance with the terms of this contract on MANUFACTURER'S
behalf prior to termination. Except as specifically set forth in this section,
all rights and liabilities of the parties arising out of this contract shall
cease on the date of termination hereof.
IN WITNESS WHEREOF, MANUFACTURER and "CMS" have signed this agreement by
their duly authorized representatives.
HUMATECH, INC. CMS PARTNERS, LTD.
X. XXXX, INC. GENERAL PARTNER
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxx
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Title: President Title: President
Date: 04-24-98 Date: 04-29-98
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ATTACHMENT A
PRODUCTS
All equipment and products currently manufactured or sold by Humatech, Inc. are
included in the scope of this marketing services agreement and such other
products as may be added by mutual agreement from time to time.
ATTACHMENT B
COMPENSATION
The method of compensation for CMS PARTNERS, LTD. from MANUFACTURER is a
performance fee based on TEN PERCENT (10%) of the net invoiced sales of
MANUFACTURER'S products to WAL*MART, INC. AND WAL*MART SUPER CENTERS, SAM'S
CLUBS AND INTERNATIONAL. MANUFACTURER shall pay CMS PARTNERS LTD. the amount
specified herein not later than on the 15th day of the month following the month
in which the product sales are invoiced, or ten days after receipt of payment
from customers, whichever is later.
Commission checks should be made out the following:
CMS Partners, Ltd.
X.X. Xxx 000000
Xxxxxxxxxxx, XX 00000
Federal Tax ID #00-0000000
Please return signed contracts to Xxxxx Xxxxxx at the above address.
ATTACHMENT C
Performance fees will also be paid to CMS under the terms of this agreement for
sales to Price-Costco, BJ's Wholesale Clubs and other accounts as may be added
by mutual agreement from time to time.
