Exhibit 10.19
MEMORANDUM OF AGREEMENT
THIS AGREEMENT ("Agreement") made this 27th day of August, 2003, between the
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SEQUIAM BIOMETRICS, INC., a Florida corporation, doing business at 000 Xxxxxxx
Xxxx, Xxxxxxx, XX 00000, hereinafter called the "Sequiam", and T&N Enterprises,
A Virginia Company, doing business at 000 Xxxxx Xxxxxxx Xx. Xxxxxx, XX 00000,
hereinafter called "T&N",
WHEREAS, Sequiam has developed a patent pending proprietary access
controlled security device using biometric technology called the BioVault(TM);
and
WHEREAS, Sequiam desires to market the BioVault(TM) through various
distribution channels including directly to owners of handguns; and
WHEREAS, T&N has experience and relationships with the National Rifle
Association of America(NRA); and
WHEREAS, T&N desires to represent Sequiam in developing and managing a
sales and marketing campaign for the BioVault(TM) through the National Rifle
Association of America:
NOW THEREFORE, in consideration of their mutual promises set forth herein,
the sum of Ten and No/100 Dollars ($10.00), and good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. APPOINTMENT AS EXCLUSIVE SALES REPRESENTATIVE. T&N is appointed as the
exclusive sales representative for all activities developed between Sequiam and
the National Rifle Association of America.
2. DUTIES OF SALES REPRESENTATIVE. As the exclusive sales representative
between Sequiam and the National Rifle Association of America, T&N shall have
the following duties and responsibilities:
a. Represent Sequiam in all matters dealing with the National Rifle
Association of America.
b. Develop sales and marketing programs including advertising, direct
sales programs, public relations, event representation and other
activities as may be mutually agreed upon among Sequiam, T&N and the
National Rifle Association of America necessary to accomplish the
sales goals, as established by Sequiam through the National Rifle
Association of America, Sequiam desires to use a number of different
sales and marketing activities in working with the NRA. T&N will work
with the NRA on behalf of Sequiam to achieve as many of these
activities as possible within the constraints of both time schedules
for ad placement and the available funding that can be devoted to
these activities as described in paragraph 3F of this agreement. These
activities include but are not limited to the following:
i. Getting the BioVault(TM) listed on the NRA Web Store
ii. Creating and directing a series of promotional marketing
pieces on the BioVault(TM) to the top 200,000+ known buyers
on the NRA's e-mail list.
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iii. Placement of full-page, 4 colors ads in each of the three
(3) NRA publications beginning no later than November, 2003
with a minimum of six (6) insertions a year in each of these
publications.
iv. Development of a direct marketing program to NRA's current
3.5 million mailing list.
v. Development of a direct marketing program to NRA's 20
million mailing list.
vi. Assistance in the development of an infomercial direct sales
program directed to targeted markets with NRA endorsement.
c. Comply with all sales and marketing related policies and procedures of
Sequiam and the National Rifle Association of America that are
specifically given to T&N, which may from time to time change.
3. PRICING SCHEDULE & TERMS. The following pricing schedule and terms will be
applicable on all sales conducted and generated by T&N through the National
Rifle Association of America:
a. All orders will be generated on an individual basis from members of
the National Rifle Association of America.
b. Sequiam will handle all order processing, collection of payment at
terms and conditions as defined by Sequiam and fulfillment and
shipment of orders.
c. Procedures and reporting will be developed between Sequiam, T&N and
the National Rifle Association of America acceptable to all parties.
d. All sales of the BioVault(TM) product through T&N and the National
Rifle Association of America will be at the MSRP or at a price no less
than $599.00 per unit plus shipping and handling.
e. At no time will T&N through the National Rifle Association of America
sell the product for a lesser amount without first obtaining written
approval from Sequiam.
f. T&N will be paid a sales commission of $150.00 per unit of the
BioVaults(TM) sold through the National Rifle Association of America
for the first 1000 units. T&N will be paid a sales commission of
$175.00 per unit on all sales thereafter. T&N will use part of the
proceeds it receives to go towards marketing activities as described
in paragraph 2b. As money accrues to T&N from units sold, T&N will
devote a maximum amount of this money towards the marketing costs
under the schedule below for number of units sold. T&N will work
closely with the Director of Marketing for Sequiam and with the NRA to
decide how to best maximize the use of this money in the marketing
campaign.
i. $20 per BioVault(TM) for the first 1000 units sold.
ii. $25 per BioVault(TM) for all sales in excess of 1,001 units.
g. Payment of commission will be on a monthly basis on all completed
sales shipped and processed. Returns and credits will be deducted from
any sales and are not subject to commission payment. In the event
commission has already been paid on
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return sales, said commission will be deducted from the next month's
payment to T&N.
h. Any and all other sales cost or commissions that may be necessary to
successfully complete these transactions or any royalties or
endorsement fees are the sole responsibility of T&N of which Sequiam
has no interest as long as they comply with the terms of this
agreement.
4. MARKETING SUPPORT. Sequiam will provide T&N with the following readily
accessible marketing support to enable him to successfully complete the duties
as defined in this agreement. Readily accessible market support Is defined as
that currently in existence. If Sequiam has to create special marketing
material or provide services to T&N that is not readily accessible, such
material and services will be provided at Sequiam's cost.
a. Support of the Sequiam marketing staff, including the Vice President
and Director of Marketing, to develop sales and marketing programs
including advertising, direct sales programs, public relations, event
representation and other activities as may be mutually agreed upon
between Sequiam and the National Rifle Association of America.
b. Creative development of literature, ads, direct mail pieces,
photography and other components necessary to develop sales and
marketing programs mutually agreed upon between Sequiam and the
National Rifle Association of America.
c. Production ready material for the printing, placement, and use by T&N
to accomplish the marketing activities mutually agreed upon between
Sequiam and the National Rifle Association of America.
d. The cost of any printing, advertising placement, mailing and
distribution of marketing literature and materials unless otherwise
agreed to in writing by Sequiam will be at the sole expense of T&N.
e. T&N may procure one (1) BioVault(TM) unit for demonstration purposes
at no charge during the life of this agreement or any extension
thereof. Should T&N desire to procure additional units for
demonstration purposes they may be acquired at the lowest distributor
pricing currently available at the time of the request.
5. MARKETING MATERIAL. It is specifically agreed that NO marketing material
may be created, distributed or used and no specific product representation shall
be made without the prior approval and written consent of Sequiam.
6. TERM OF THE AGREEMENT. This agreement shall become effective upon signing
and continue for a three (3) year term unless otherwise cancelled by either
party.
7. RENEWAL OF AGREEMENT. Unless otherwise notified by either party upon the
giving of thirty (30) days of notice, this agreement will automatically renew
for subsequent one (1) year terms.
8. CANCELLATION OF AGREEMENT / TERMINATION. This Agreement may be terminated
for any reason by either party with a ten (10) days written notice (email OK).
Once terminated, T&N will stop all marketing activities and all representational
activities with the NRA on behalf of Sequiam, T&N will continue to receive and
Sequiam agrees to continue to pay T&N commissions as set forth in paragraph 3F
for all residual sales as long as the BioVault(TM)
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units continue to bring in revenue to Sequiam from any NRA sales and marketing
activities for a period of eighteen (18) months from the date of termination
notice except in the event of death or disability(such that he can't work) of
T&N principal Xxx Xxxxxxxxx, whereupon this agreement will immediately terminate
with no residual payments. Additionally, should the National Rifle Association
of America not want to continue its relationship with T&N, this agreement is
immediately terminated with no requirement for future residual payments. Sequiam
is specifically prohibited from establishing any other "deal" or making any
"outside" offer to the NRA which would exclude T&N or which would in any way
motivate the NRA to want to discontinue their relationship with T&N and work
directly with Sequiam.
9. ESTABLISHMENT OF SALES GOALS. It is expressly agreed that each party is
entering into this agreement with the goal of selling 100,000 or more of the
BioVault(TM) units.
10. SEQUIAM'S ABILITY TO DEVELOP OTHER SIMILAR AGREEMENT AND ENGAGE IN OTHER
MARKETING ACTIVITIES. Nothing in this agreement prohibits or limits Sequiam from
developing other similar agreements with arty other individual or group as long
as that agreement does not include representation or activities with the
National Rifle Association of America. Nothing in this agreement prohibits or
limits Sequiam from developing or implementing other marketing programs that may
Incidentally appeal to or be directed to people of similar interest as members
of the National Rifle Association of America and may be impacted or exposed to
such marketing activity.
11. COMPETING PRODUCTS. T&N agrees that it will not represent any products
that compete with the Sequiam products during the term of this Agreement or any
extensions thereof.
12. NEW PRODUCTS. If Sequiam now or hereafter manufactures or distributes, or
proposes to manufacture or distribute, any other similar products, T&N shall
have the first right of refusal to represent these products to the National
Rifle Association of America under terms and conditions to be developed at that
time but similar in proportion to this agreement.
13. WARRANTY OF PRODUCT. Sequiam warrants to T&N that the BioVault(TM)
pursuant to this Agreement:
a. Will be free from defects in material and workmanship for a period of
six months from date of shipment except for claims caused by misuse,
static discharge, alteration or accident.
b. Will be free from liens and encumbrances. Sequiam's liability under
this warranty is limited to, and Sequiam's sole and exclusive remedy
for breach of this warranty is, the repair or replacement, at
Sequiam's option, of the defective BioVault(TM) or part. All warranty
repairs and replacements will be conducted solely by Sequiam at places
so designated by Sequiam. The cost of shipment of replacement parts or
Products each way shall be borne by owner.
14. WARRANTY LIMITATION; LIMITATION OF LIABILITY. IT IS EXPRESSLY UNDERSTOOD
AND AGREED THAT SEQUIAM SHALL IN NO WAY BE DEEMED OR HELD TO BE OBLIGATED,
LIABLE OR ACCOUNTABLE TO T&N OR ANY OTHER PERSONS UPON OR UNDER ANY
GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, BY OPERATION OF LAW, OR
OTHERWISE, BEYOND ANY EXPRESS AGREEMENTS HEREIN SET OUT, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR
MERCHANTABILITY. IN NO EVENT, WHETHER ARISING FROM CONTRACT, WARRANTY, OR TORT
LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT
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LIABILITY) OR OTHERWISE SHALL SEQUIAM BE LIABLE TO ANY PARTY FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PENAL DAMAGES.
15. LIABILITY AND INDEMNITY. In no event will Sequiams's liability for any
failure of performance or other breach of this Agreement or of any warranty
hereunder exceed the price paid for products purchased from Sequiam. T&N
hereby waives arid releases any claims against Sequiam in excess of such amount.
T&N agrees to indemnify and save harmless Sequiam from and against:
a. All liability to others and all claims, causes of action and suits of
others, including, without limitation, employees, subcontractors or
agents of T&N, for personal injury (including death) or property
damage, arising from the acts or omissions of employees, contractors
or agents of T&N;
b. Any and all losses, damages, costs or expenses incurred by T&N as a
result of T&N's failure to fulfill or comply with the terms and
conditions contained herein;
c. Reasonable attorneys' fees and costs related to the above.
16. CONFIDENTIAL INFORMATION. Technical data, strategic plans and engineering
in technical instructions pertaining to the BioVault(TM) are recognized by T&N
to be secret and confidential and to be the property of Sequiam. These items
shall at all times and for all purposes be held by T&N in a confidential
capacity and shall not, without the prior written consent of Sequiam, be
disclosed to any person, firm or corporation.
17. RELATIONSHIP OF PARTIES. T&N is an independent contractor and is not the
legal representative or agent of Sequiam for any purpose and shall have no right
or authority (except as expressly provided In this Agreement) to incur, assume
or create in writing or otherwise, any control over any of Sequiam's employees,
all of whom are entirely under the control of Sequiam, who shall be responsible
for their acts and omissions. Nothing contained in this Agreement shall be
deemed to create any partnership or joint venture relationship between the
parties.
18. PATENT AND COPYRIGHT. Sequiam warrants and represents that the Products,
any other materials supplied by Sequiam pursuant hereto and the Trademarks and
designs used in connection therewith shall not infringe any patent, copyright,
trademark or other similar proprietary right of the parties in the United
States.
19. FORCE MAJEURE. Neither party shall be liable for any delay or failure to
perform hereunder due to floods, riots, strikes, freight embargoes, acts of God,
acts of war or hostilities of any nature, laws or regulations of any government
(whether foreign or domestic, federal, state, county or municipal) or any other
similar cause beyond the reasonable control of the party affected.
20. WAIVERS AND AMENDMENTS. The delay or failure by either party to exercise
or enforce any of its rights under this Agreement shall not constitute or be
deemed a waiver of that party's right thereafter to enforce those rights, nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. This agreement or
any individual section of the agreement may be waived or modified upon written
agreement between the parties. No amendment or waiver of any provision of this
Agreement shall be effective unless it is in writing and signed by the party
against which it is sought to be enforced.
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21. SEVERABILITY. If any provision of this Agreement is held to be void, the
remaining provisions shall remain valid and shall be construed in such a manner
as to achieve their original purposes in full compliance with the applicable
laws and regulations.
22. SOLE AGREEMENT. This Agreement is intended to be the sole and complete
statement of the obligations and rights of the parties as to all matters covered
by this Agreement, and supersedes all previous understandings, agreements,
negotiations and proposals relating thereto.
23. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors. This
Agreement shall not be assigned by either party without the prior written
consent of the other party.
24. WRITTEN COMMUNICATIONS. Ail notices, orders and other communications
provided for hereunder shall be in writing and shall be delivered by mail,
electronic mail (e-mail), fax, telex, telegram or cable, as to each party
hereto, at its address set forth in this Agreement or at such other address as
shall be designated by such party in a written notice to the other party. All
such communications shall be effective upon receipt,
25. DISPUTE. Any dispute arising out of or relating to this Agreement that has
not been settled within thirty (30) days by good faith negotiation between the
parties to this Agreement shall be submitted to an Arbitrator for final and
binding arbitration pursuant to American Arbitration Association Arbitration
Rules. Any such arbitration shall be conducted in Orlando, Florida. Such
proceedings shall be guided by the following agreed upon procedures:
a. Mandatory exchange of all relevant documents, to be accomplished
within forty-five (45) days of the initiation of the procedure;
b. No other discovery;
c. Hearings before the neutral advisor which shall consist of a summary
presentation by each side of not more than three hours; such hearings
to take place on one or two days at a maximum;
d. Decision to be rendered not more than ten (10) days following such
hearings. Reasonable costs of all parties from and after the date of
filing for Arbitration shall be borne by the unsuccessful party or, if
more than one party is finally determined to be responsible, then all
such costs shall be borne proportionately among such parties.
26. GOVERNING LAW AND VENUE. This Agreement shall be governed by, and
construed in accordance with, the laws of The United States of America, and the
State of Florida. Both Parties agree that the proper venue for any dispute or
lawsuit shall be Orange County, Florida.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first written above. Therefore, let the parties hereunder set
their hands and seals on the dates and year below their signatures.
"T&N"
Witnessed By: T&N Enterprises
/s/ Xxxx Xxxxx XxXxxxx By: /s/ Xxx X. Xxxxxxxxx
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Xxx X. Xxxxxxxxx, President, T&N
Print Name: Xxxx Xxxxx XxXxxxx
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Print Name:
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"Sequiam"
Witnessed By:
/s/ Xxxx Xxxxx By: /s/ Xxxx Xxxxxxxxxxx
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Print Name: Xxxx Xxxxx Xxxx Xxxxxxxxxxx, Xx. Vice President
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Print Name:
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