CONFIDENTIAL PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. PROFIT SHARING AND INTERNET DISTRIBUTION AGREEMENT
EXHIBIT
10.29
*CONFIDENTIAL
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND
FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL
TREATMENT.
THIS
PROFIT SHARING AND INTERNET DISTRIBUTION AGREEMENT (this “Agreement”) is entered
into as of this 22nd day of June, 2006 by and between Smart Energy Solutions,
Inc., a corporation organized and existing under the laws of the State of
Nevada, United States, having its principal place of business at 000 Xxxxxx
Xxxxxx, Xxxxxxx, XX 00000(“Manufacturer”) and Xxxxxx Group, Inc., a corporation
organized and existing under the laws of the State of Florida, having its
principal place of business at 0000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxxx, XX 00000
(“Xxxxxx Group”).
WITNESSETH;
that
WHEREAS,
Manufacturer is the exclusive owner and has all right, title and interest to
proprietary products currently referred to as the “Battery Brain” and owns two
internet web sites over which it sells its Battery Brain product, as such is
set
forth in Exhibit C attached hereto and made a part hereof (the
“Product”);
WHEREAS,
Xxxxxx Group is engaged in the business of, among other things, the design,
sales, and marketing of electronic controllers to the automotive and other
industries;
WHEREAS,
Manufacturer desires to appoint Xxxxxx Group as its exclusive sales and
marketing agent for the Product over the internet, and desires to license to
Xxxxxx Group the exclusive right to utilize its domain names and operate its
web
sites and otherwise market and sell the Product over the internet.
WHEREAS, Xxxxxx
Group and Manufacturer are committed to working together and sharing profit
generated as a result of business delivered to Manufacturer by Xxxxxx
Group.
NOW,
THEREFORE, in consideration of the premises and mutual covenants and agreements
herein set forth, the parties hereto hereby agree as follows:
1. Exclusive
Appointment; Grant of License; and Term; Product Alterations.
1.1
Exclusive
Appointment; Grant of License; and Term.
Pursuant to the terms and conditions contained in this Agreement, Manufacturer
grants and Xxxxxx Group accepts (i) an exclusive, royalty-free license to (a)
operate and utilize the Manufacturer’s domain names as set forth in Exhibit A
attached hereto and made a part hereof, and (b) a non-exclusive, royalty-free
license to use Manufacturer’s trade names and Trademarks (as defined in Section
7.1 hereof) in connection with this Agreement, and (ii) the exclusive right
in
the United States and Canada (the “Territory”) to promote, market and sell the
Product over the internet (“Internet Sales”), through direct web sites and via
on-line advertising web sites. During the Term (as defined below), Manufacturer
shall not appoint any other person or entity in the Territory as an agent for
the sale of the Product in over the internet. The Term of this Agreement shall
be for three (3) years, renewable annually, commencing on the date hereof,
unless earlier terminated pursuant to Section 9.1 hereof (the “Term”). The Term
may be renewed upon mutual written agreement of the parties hereto.
1.2
Alterations
to Product.
Manufacturer, at its option, subject to giving ninety (90) days notice, may
discontinue the manufacture and/or sale of the Product, and may modify or alter
the Product as Manufacturer, in its sole discretion, deems
appropriate;
provided,
however,
that in
the event Manufacturer modifies or alters the Product, other than pursuant
to an
individual customer or market segment request or requirement, then Manufacturer
shall, at no cost to Xxxxxx Group, trade out all of Xxxxxx Group’s then
remaining inventory for the new, modified or altered Product. This trade
however, shall only apply to discontinued Products and not to new or enhanced
Products.
2. Purchase
and Delivery of Product; Profit Sharing; Accounting; Right of
Audit
2.1
Purchase Order.
Xxxxxx
Group shall order the Products from Manufacturer by submitting to Manufacturer
a
purchase order (the “Purchase Order”) in the form set forth in Exhibit B
attached hereto and made a part hereof.
2.1 Percentage
of Profit Share.
In
connection with the sale of the initial *
units of
Product (“Initial Orders”) only, Manufacturer shall pay Xxxxxx Group a
percentage of the “Gross Profit” in connection with any and all revenue
generated as a result of Internet Sales of the Product (the “CG Share”) in
accordance with the following schedule:
Number
of Unites Sold %
Gross Profit Due Xxxxxx Group
1
to *
Product units *
For
purposes of this Agreement, “Gross
Profit” shall mean the difference between total sales attributable to Internet
Sales and cost of goods sold attributable to the Products sold via Internet
Sales, less returns. Following the sale of the initial * units of the Product,
Xxxxxx Group’s compensation shall be in connection with its margin on the
distribution and resale of the Product.
2.2 Separate
Accounting.
Manufacturer shall ensure that the accounting of all revenue generated by Xxxxxx
Group attributable to Internet Sales, the relevant cost of goods sold related
thereto, and the resultant Gross Profit are separately recorded in the financial
statements of Manufacturer.
_____________________
*
Omitted
pursuant to a request for confidential treatment and filed separately with
the
Securities and Exchange Commission.
*
Omitted
pursuant to a request for confidential treatment and filed separately with
the
Securities and Exchange Commission.
2
2.3 Right
of Audit.
Manufacturer
shall allow Xxxxxx Group and its authorized representatives the right during
normal business hours to inspect Manufacturer’s books and accounting records as
they relate to Internet Sales, to make extracts and copies therefrom and to
have
full access to all Manufacturer’s property and assets for such purposes,
provided
always
that in exercising such right Xxxxxx Group shall give reasonable prior written
notice to Manufacturer and must conduct themselves in a reasonable
manner.
3. Duties
of Xxxxxx Group
3.1 Promotion
of Sales; Maintenance of Web Sites.
Xxxxxx
Group agrees to use its best efforts to promote the sale of the Product via
the
internet through maintenance of a web-site and via on-line advertising web
sites. Xxxxxx Group shall create, update and maintain internet web sites for
purposes of promoting and selling the Product via the internet.
3.2 Expenses.
Xxxxxx
Group agrees to bear and assume all costs and expenses of every kind in
connection with soliciting Internet Sales.
3.3 Competitive
Products.
Representative shall not, directly or indirectly, sell or solicit orders for
the
sale of or otherwise deal in products which, in the reasonable discretion of
Manufacturer, are competitive with the Products.
3.4 Preliminary
Marketing Plan; Business Plan.
Within
ten (10) business days of the execution of this Agreement, Xxxxxx Group has
submitted to Manufacturer a preliminary marketing plan, summarizing its plan
for
the promotion, marketing and distribution of the Product within the Territory.
Within thirty (30) days of the date hereof, Xxxxxx Group shall submit to
Manufacturer a business plan (the “Xxxxxx Group’s Business Plan”) of its
promotion, marketing and distribution of the Product within the Term, including
without limitation, sales targets for each quarter in the Term. The Manufacturer
and Xxxxxx Group shall agree to the quotas and other milestones set forth in
the
Xxxxxx Group’s Business Plan.
3.5
With
respect to each Purchase Order, Xxxxxx Group shall be responsible at Xxxxxx
Group’s cost and expense for: (1) ensuring the accuracy of the Purchase Order;
(2) providing Manufacturer with any information necessary to enable Manufacturer
to process the order; (3) complying with applicable legal requirements in the
Territory, including, without limitation, labeling and marketing legal
requirements; and (4) obtaining any necessary governmental permits, licenses,
certificates of origin, approvals, and other requisite documents in respect
of
the importation of the Products into the Territory and their resale in the
Territory. Further, Xxxxxx Group shall maintain an adequate amount of Product
inventory to service the Market Segment in the Territory, and the initial amount
of Product for which Xxxxxx Group shall issue a purchase order for hereunder
is
*
units.
Xxxxxx Group shall also maintain a sales force reasonably adequate to service
the Market Segment in the Territory.
_____________________
*
Omitted
pursuant to a request for confidential treatment and filed separately with
the
Securities and Exchange Commission.
3
3.6 Delivery.
As soon
as practicable after Manufacturer’s acceptance of a Purchase Order, but in no
event more than three (3) days, Manufacturer shall notify Xxxxxx Group of the
estimated delivery date (the “Estimated Delivery Date”) for the Products
purchased. Manufacturer shall deliver the purchased Products at Xxxxxx Group’s
expense in accordance with the method specified in the Purchase Order.
3.7
Title;
Risk of Loss.
The
title to any of the Products shall not pass to Xxxxxx Group until Manufacturer
has received payment in full of Purchase Order; provided,
nevertheless,
that
the risk of loss of or damage to any of the Products shall pass to Xxxxxx Group
from the time of delivery to the carrier at Manufacturer’s premises, whichever
is earlier.
4. Duties
of Manufacturer
4.1 Sales
Materials.
Manufacturer agrees to provide Xxxxxx Group, at no cost to Xxxxxx Group, such
sales materials with respect to Products as Manufacturer generally makes
available to its sales representatives, including technical specifications,
price lists, drawings, advertisements and samples. Such materials remain the
property of Manufacturer and, except insofar as they are utilized by xxxxxx
Group in the course of its performance of its duties under this Agreement,
must
be promptly returned to Manufacturer upon written request.
4.2 Product
Developments.
Manufacturer agrees to keep Xxxxxx Group informed about developments with
respect to the Products which may be useful or necessary to Xxxxxx Group in
the
performance of its duties under this Agreement.
4.3 Acceptance
or Rejection of Orders.
Manufacturer agrees to promptly notify Xxxxxx Group of its decision to accept
or
reject any orders placed by customers via the internet.
4.4 Shipment
of the Initial Orders. Manufacturer shall, on Xxxxxx Group’s behalf, deliver the
Initial Orders directly to the customers at their designated shipping
locations.
5. Payment
for Products.
5.1
Prices.
Attached hereto as part of Exhibit C is Manufacturer's price schedule for the
Products. All prices are exclusive of import duties, landing charges, and
governmental excise, sales, use, occupational and similar taxes. The prices
shall be subject to change by Manufacturer from time to time upon sixty (60)
days prior written notice to Xxxxxx Group; provided, however, that no price
change shall affect purchase orders accepted by Manufacturer prior to notifying
Xxxxxx Group of such change.
5.2
Transportation
Costs.
Xxxxxx
Group shall, in addition to the price, be liable for arranging and paying all
costs of transport and insurance. If Manufacturer agrees at the request of
Xxxxxx Group to arrange for transport and insurance as agent for Xxxxxx Group,
Xxxxxx Group shall reimburse Manufacturer the full shipping, handling, and
other
expenses thereof and all the applicable provisions of this Agreement shall
apply
with respect to the payment of such costs as they apply to payment of the price
of the Products.
4
5.3
Taxes;
Duties.
All
prices for the Products are exclusive of any applicable taxes, including sales
tax or any other value-added tax, for which Xxxxxx Group shall be additionally
liable. Xxxxxx Group shall pay costs and expenses of obtaining any necessary
governmental permits, licenses, approvals, and other requisite documents in
connection with the import or export of the Products and any applicable duties,
customs, tariffs, or other charges thereon.
5.4
Payment
Method.
Unless
otherwise agreed by the parties in writing, payment shall be made by the Xxxxxx
Group separately for each purchase order accepted by the Manufacturer. The
Xxxxxx Group shall pay all invoice amounts within sixty (60) days of the date
of
invoice in U.S. dollars. .
5.5 Failure
to Pay.
If
Xxxxxx Group fails to pay the price and other amounts due for any Products
prior
to or on the date such payment is due, Manufacturer shall be entitled (without
prejudice to any other right or remedy it may have) to:
(a) cancel
or
suspend any further delivery to Xxxxxx Group;
(b)
sell
or
otherwise dispose of any Products which are the subject of any order by Xxxxxx
Group, whether or not appropriated thereto, and apply the proceeds of sale
to
the overdue payment; and
(c)
charge
Xxxxxx Group interest on the price at the rate of the lesser of one and one-half
(1.5%) per cent per month from the date the payment became due until actual
payment is made.
6.
Resale
by Xxxxxx Group.
6.1
Generally.
Xxxxxx
Group shall be entitled to sell, in its own name and for its own account, the
Products in the Market Segment and Territory. Xxxxxx Group shall have the right
during the Term to describe itself as Manufacturer’s “Authorized Xxxxxx Group”
for the Products in the Market Segment and Territory, but shall not hold itself
out as Manufacturer’s agent or as being entitled to bind Manufacturer in any
way. Xxxxxx Group shall use its best efforts to promote the sale of the Products
in the Territory in accordance with the Xxxxxx Group’s Business Plan and
Manufacturer’s policy and shall protect Manufacturer’s interests. Xxxxxx Group
agrees that all its sales efforts are to be directed only to customers in the
Territory.
6.2
Resale
Prices.
Xxxxxx
Group shall be entitled to charge its customers the resale prices of the
Products as it determines in its sole discretion. Xxxxxx Group shall avoid
such
pricing policies as would clearly adversely affect the image of the Products.
7.
Manufacturer’s
Trademarks; Other Intellectual Property; IP Indemnity;
Confidentiality.
7.1
Authorization.
Manufacturer hereby authorizes Xxxxxx Group to use Manufacturer’s trademarks and
trade names (collectively, the “Trademarks”) in the Territory solely on or in
relation to the Products for the purposes only of exercising its rights and
performing its obligations under this Agreement. Such authorization shall cease
immediately upon the expiration or termination, for any reason, of this
Agreement; provided,
however,
that
Xxxxxx Group shall have the limited right sell the Products in stock at the
date
of expiration of this Agreement which bear the Trademarks.
5
7.2
Use
of
Trademarks.
Xxxxxx
Group shall ensure that each reference to and use of any of the Trademarks
by
Xxxxxx Group is in a manner from time to time approved by Manufacturer and
accompanied by an acknowledgment, in a form approved by Manufacturer, that
the
same is a trademark (or registered trademark) of Manufacturer.
7.3
Prohibited
Conduct.
Xxxxxx
Group shall not:
(a)
Make
any
modifications to the Products;
(b)
Alter,
remove or tamper with any Trademarks, numbers, or other means of identification
used on or in relation to the Products;
(c)
Use
any
of the Trademarks in any way which might prejudice their distinctiveness or
validity or the goodwill of Manufacturer therein or in any manner not previously
approved by Manufacturer;
(d)
Use
in
relation to the Products any trademarks other than the Trademarks without
obtaining the prior written consent of Manufacturer; or
(e)
Use
in
the Territory any trademarks so resembling any Trademark as to be likely to
cause confusion or deception.
7.4
Rights
in Trademarks.
Except
as provided in this Section 6, Xxxxxx Group shall have no rights in respect
of
any Trademarks used by Manufacturer in relation to the Products or of the
goodwill associated therewith, and Xxxxxx Group hereby acknowledges that, except
as expressly provided in this Agreement, it shall not acquire any rights in
respect thereof and that all such rights and goodwill are, and shall remain,
vested in Manufacturer. Xxxxxx Group shall not register any Trademarks (or
which
are confusingly similar to the Trademarks) in the Territory or elsewhere.
7.5
Enforceability
of Intellectual Property Rights.
Xxxxxx
Group shall take all such steps as Manufacturer may reasonably require to assist
Manufacturer in maintaining the validity and enforceability of the intellectual
property rights of Manufacturer in the Territory provided
that
Manufacturer shall reimburse Xxxxxx Group for all costs or other liabilities
arising from or in connection with such steps which have previously been
approved by Xxxxxx Group in writing.
7.6
Agreements.
Xxxxxx
Group shall, at the request of Manufacturer, execute such registered user
agreements or licenses in respect of the use of the Trademarks in the Territory
in the name of the Manufacturer as Manufacturer may request, provided
that the
provisions thereof shall not be more onerous or restrictive that the provisions
of this Agreement.
7.7
Protection
of Intellectual Property.
Xxxxxx
Group shall not do or authorize any third party to do any act which would or
might invalidate or be inconsistent with any intellectual property rights of
Manufacturer.
6
7.8
Notification
of Infringement; Intellectual Property Indemnification.
Xxxxxx
Group shall promptly notify Manufacturer of any actual, threatened or suspected
infringement in the Territory of any intellectual property rights of
Manufacturer which comes to Xxxxxx Group’s attention, and of any claim by any
third party so coming to its attention that the importation of the Products
into
the Territory, or their sale therein, infringes any rights of any other person,
and Xxxxxx Group shall at the request and expense of Manufacturer do all such
things as may be reasonably requested to assist Manufacturer in relation to
any
such infringement or claim. Manufacturer shall defend, indemnify, and hold
harmless the Xxxxxx Group for any loss, damage, liability or expense, including
reasonable attorneys’ fees, arising out of any third party claim of infringement
of any patent, trademark, trade names, or copyright based on the manufacture,
sale, license, use or installation of any materials, equipment, programs or
services in connection with this Agreement. Manufacturer shall defend or settle,
at its own expense, any action for which it is responsible
hereunder.
7.9 Confidential
Information.
During
the Term and after the expiration of the Term, Xxxxxx Group shall hold in
strictest confidence and shall not directly or indirectly disclose, use or
publish any of the Confidential Information (defined below) unless expressly
authorized in writing by Manufacturer. As used in this Agreement, the term
"Confidential Information" means all items, materials and information which
belong to the Manufacturer and are not generally known to the public, or which
have been confidentially provided to the Xxxxxx Group. Confidential Information
includes, but is not limited to, this Agreement and the terms hereof, pricing
information and policies, information concerning: trade secrets (as defined
by
applicable law); computer programs (code); software; research and development
projects and materials; the Xxxxxx Group’s Business Plan; methods of operation;
technical information; processes; formulas; compositions; systems; techniques;
non-public know-how of the Manufacturer or its customers; customer account
information, lists and data; estimating procedures; sources of supplies or
materials; marketing plans or strategies; the existence and contents of
agreements; financial information, data, statements or accounts; and all
documentation, reports and data (recorded in any form) relating to the
foregoing. Confidential Information does not include anything described above
which (i) is or becomes generally available to the public other than as a result
of a disclosure by Xxxxxx Group, its agents, representatives, advisors or
employees; or (ii) becomes available to Xxxxxx Group or to Xxxxxx Group’s
agents, representatives, advisors or employees on a non-confidential basis
from
a source which was not then prohibited from disclosing such Confidential
Information to us by a legal, contractual or fiduciary obligation to
Manufacturer; or (iii) was in Xxxxxx Group’s possession, or in the possession of
Xxxxxx Group’s agents, representatives, advisors or employees, or otherwise
available to Xxxxxx Group’s, or Xxxxxx Group’s agents, representatives, advisors
or employees, on a non-confidential basis prior to its disclosure to Xxxxxx
Group or one or more of Xxxxxx Group’s agents, representatives, advisors or
employees; or (iv) was independently developed by Xxxxxx Group without access
to
or the benefit of the Confidential Information.
7
8. Representations
and Warranties
8.1 Xxxxxx
Group Representations and Warranties.
Xxxxxx
Group represents and warrants to Manufacturer that (i) it has and will have
full
power and authority to enter into, and fully to perform, this Agreement and
that
no agreement or understanding with any other person, firm, or corporation exists
or will exist which would interfere with Xxxxxx Group’s obligations hereunder or
which would violate any agreement or understanding with any other person, firm
or corporation; (ii) the disclosure to Manufacturer of any information by Xxxxxx
Group in connection with Xxxxxx Group’s performance pursuant to this Agreement
does not contravene any confidentiality obligation Xxxxxx Group may have to
any
third party; and (iii) all payments made under this Agreement constitute
compensation for the services performed by Xxxxxx Group hereunder.
8.2 Manufacturer’s
Representations and Warranties.
Manufacturer represents and warrants to Xxxxxx Group that (i) he has and will
have full power and authority to enter into, and fully to perform, this
Agreement and that no agreement or understanding with any other person, firm,
or
corporation exists or will exist which would interfere with Manufacturer’s
obligations hereunder or which would violate any agreement or understanding
with
any other person, firm or corporation; and (ii) Manufacturer has all applicable
and necessary license to perform its obligations hereunder.
9. Termination
and Change of Control.
9.1 Termination.
Either
party may terminate this Agreement upon one hundred eighty (180) days written
notice by either party delivered to the non-terminating party at the address
listed in Section 4.3 hereto, or immediately if a Default (as defined below)
by
the other party has occurred and is continuing by giving written notice thereof
to the defaulting party. Except as otherwise specifically provided herein,
the
termination of this Agreement shall not relieve the parties of any obligation
accruing with respect to this Agreement prior to such termination. The term
“Default” shall mean any of the following events:
|
(a)
|
failure
by a party to comply with or to perform any provision of this Agreement
and continuance of such failure for ten (10) days after notice thereof
to
such party;
|
|
(b)
|
a
party becomes insolvent, is unable to pay its debts as they mature
or is
the subject of a petition in bankruptcy, whether voluntary or involuntary,
or of any other proceeding under bankruptcy, insolvency or similar
laws;
or makes an assignment for the benefit of creditors; or is named
in, or
its property is subjected to, a suit for the appointment of a receiver;
or
is dissolved or liquidated; or
|
|
(c)
|
any
warranty or representation made by a party is this Agreement is breached
or is false or misleading in any material
respect.
|
In
the
event of termination of this Agreement, such termination shall not relieve
the
parties of any obligation accruing with respect to this Agreement prior to
such
termination and Xxxxxx Group shall be entitled to receive the CG Share in
connection with all orders for Products accepted by manufacturer prior to and
including the effective date of termination of this Agreement.
8
9.2 Change
of Control.
For
purposes of this Agreement, a "Change of Control" shall mean (i) an acquisition
of any voting securities of Manufacturer (the "Voting Securities") by any
"person" (as the term "person" is used for purposes of Section 13(d) or Section
14(d) of the Securities Exchange Act of 1934, as amended (or the Canadian
equivalent) (the "1934 Act")) immediately after which such person has
"beneficial ownership" (within the meaning of Rule 13d-3 promulgated under
the
1934 Act (or the Canadian equivalent)) ("Beneficial Ownership") of 15% or more
of the combined voting power of Manufacturer’s then outstanding Voting
Securities with or without the approval of Manufacturer’s Board of Directors
(“Board”); (ii) a merger or consolidation that results in more than 50% of the
combined voting power of Manufacturer’s then outstanding Voting Securities or
its successor changing ownership (whether or not approved by the Board); (iii)
the sale of all or substantially all of Manufacturer’s assets, or the entity
that owns the Batter Brain™ assets; (iv) approval by the shareholders of
Manufacturer of a plan of complete liquidation of Manufacturer; or (v) the
individuals constituting the Board as of the date of this Agreement (the
"Incumbent Board") cease for any reason to constitute at least 1/2 of the
members of the Board. In the event of a Change of Control, then Distributor,
at
its option, may terminate this Agreement in consideration for being granted
250,000 warrants of SMGY (or its successor) stock at a strike price of forty
five cents (U.S.) (US$0.45). If Xxxxxx Group elects not to terminate this
Agreement and accept the warrants in the event of a change of control, then
Manufacturer or its successor, at Manufacturer’s or successor’s option, shall
either (i) extend the term of this Agreement for a period of three (3) years
from the effective date of the Change of Control, in which case the notice
provision pursuant to the termination for no cause provision of Section 9.1
shall be extended to three hundred sixty (360) days; or (iii) pay Distributor
an
amount equal to two (2) times the amount of annual gross profit generated by
Distributor in the immediately preceding 12 month period of this
Agreement.
10. Exclusivity.
During
the term of this Agreement, Xxxxxx Group will not enter into any activity,
employment or business arrangement which conflicts with its obligations under
this Agreement, without the prior written consent of Manufacturer. Xxxxxx Group
will advise manufacturer of its position with respect to any activity,
employment or business arrangement contemplated by it, which may be relative
to
this paragraph, and Xxxxxx Group agrees to disclose any such plans to
Manufacturer prior to implementation thereof. Likewise, during the term of
this
Agreement, Manufacturer will not, directly or indirectly, market or sell the
Product via the internet, or engage any other person or entity to market or
sell
the Product via the internet.
11. Miscellaneous
11.1. Assignment.
This
Agreement may not be assigned by either party without the prior written consent
of the other party.
11.2. Entire
Agreement; Amendments.
This
Agreement constitutes the entire agreement of the parties with respect to its
subject matter and supersedes all prior agreements and understandings of the
parties, written or oral, with respect thereto. This Agreement may only be
amended or modified pursuant to a written instrument duly executed by both
parties.
11.3. Notices.
All
notices and other communications under this Agreement shall be in writing and
shall, unless otherwise expressly provided, be deemed given if delivered
personally or transmitted by telecopy or mailed by registered or certified
first
class mail to the persons at the following addresses, changes to which each
party shall specify by like notice to the other party:
9
If
to
Xxxxxx Group, to Xxxxxx Group, Inc., 0000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxxx, XX
00000. Attention: President.
If
to
Manufacturer, to Smart Energy Solutions, Inc., 000 Xxxxxx Xxxxxx, Xxxxxxx,
XX
00000. Attention: President.
11.4. Waivers.
No
failure or delay to exercise any power, right or remedy under this Agreement
shall operate as a waiver, nor shall the waiver of a breach of any provision
of
this Agreement operate as a waiver of any subsequent breach. Any and all
remedies which either party may have under this Agreement shall be in addition
to, and not in lieu of any other remedies, all such remedies being
cumulative.
11.5. Severability.
If any
provision of this Agreement shall to any extent be held invalid or
unenforceable, such invalidity and unenforceability shall not affect the
remaining provisions hereof which shall remain in full force and
effect.
11.6. Governing
Law.
This
Agreement and the rights and obligations of the parties under it shall be
governed by, construed and interpreted in accordance with, the laws of the
State
of New Jersey.
11.7 Dispute
Resolution; Arbitration; Waiver of Jury Trial.
(a) Initial
Dispute Resolution.
In the
event of any dispute relating to this Agreement or the breach, termination
or
validity thereof, the party making the claim will give notice to the other
party
setting forth the matters in dispute. The parties shall negotiate in good faith
to resolve such dispute for thirty (30) days following the receiving party’s
receipt of such notice of dispute. If the parties hereto shall not have resolved
the dispute within such thirty (30) day period, the items in dispute will be
exclusively and finally determined and settled by binding arbitration in
accordance with this Section 11.7, in which case either party may submit
the dispute to arbitration in accordance with the procedures set forth
below.
(b) Arbitration
Rules.
Any
claim, controversy or dispute concerning questions of fact or law arising out
of
or relating either to this Agreement in connection with the performance by
either party hereto, or to the threatened, alleged, or actual breach thereof
by
either party hereto which is not disposed of by mutual agreement pursuant to
Section (a) above, shall be settled by arbitration, to be held in New York
City
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association (“AAA”), before an arbitrator jointly selected by Manufacturer and
Xxxxxx Group. If
the
parties are unable to agree upon a single arbitrator, each party will select
one
arbitrator from the AAA list and the two arbitrators shall select a third
arbitrator from the AAA list. The
decision of the arbitrator shall be final, conclusive, and binding upon the
parties hereto. Judg-ment upon an award rendered by the arbitrator may be
entered in any court of competent jurisdiction. Except as otherwise specifically
provided in this clause, neither party hereto shall institute any action or
proceeding against the other party hereto in any court with respect to any
dispute which is or could be the subject of a claim or proceeding pursuant
to
this clause.
The law
to be applied in any such arbitration shall be that law referenced in Section
11.6 hereof.
10
(c)
Waiver
of Jury Trial.
THE
PARTIES AGREE AND ACKNOWLEDGE THAT THEY HEREBY WAIVE THEIR RESPECTIVE RIGHTS
TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS
AGREEMENT. The scope of this waiver is intended to be all-encompassing of any
and all disputes, including, without limitation, contract claims, tort claims,
and all other common law and statutory claims. This waiver is irrevocable,
and
shall apply to any subsequent amendments, renewals, or modifications to this
Agreement or any Exhibit to this Agreement.
11.8. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
document.
11.9 Public
Announcements; Disclosure.
Each
party hereto shall consult with the other party prior to making any such press
release, public announcement or public confirmation or disclosure regarding
this
Agreement as it relates to the other party, and no such press release, public
announcement or public information or disclosure shall be made without prior
written consent and approval of the other party. The foregoing shall not
preclude either party from making any disclosure that a party reasonably
believes is required by operation of law, rule or regulation or disclosing
that
the parties have a working relationship to prospective clients.
[signature
page follows]
11
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be duly executed as of the date first
above written.
SMART
ENERGY SOLUTIONS,
INC.
XXXXXX
GROUP, INC.
By:
/s/
Xxxx Xxxxxx By:
/s/
Xxxxx Xxxxxx
Its:
CEO Its:
CEO
12
EXHIBIT
A
Domain
names
xxx.xxxxxxxxxxxx.xxx
xxx.xxxxxxxxxxxx.xxx
xxx.xxxxxxxxxxxx.xx
13
EXHIBIT
B
Purchase
Order
14
EXHIBIT
C
Product
Listing and Product Pricing
*
_________________
*
Omitted
pursuant to a request for confidential treatment and filed separately with
the
Securities and Exchange Commission.
15
