================================================================================
EXCLUSIVE MANUFACTURING & SUPPLY AGREEMENT
This Exclusive Manufacturing and Supply Agreement ("Agreement") is made and
entered into this 29th day of November, 2006 by and between Evolve Projects,
LLC, an Ohio limited liability company ("Evolve"), with notice address at X.X.
Xxx 00000, Xxxxx, XX 00000 and CirTran Corporation, a Nevada corporation, with
principal offices at 0000 Xxxxx 0000 Xxxx, Xxxx Xxxxxx Xxxx, XX 00000
("Manufacturer").
RECITALS
Evolve is engaged in the business of marketing and distributing health and
fitness equipment and services.
Manufacturer is engaged in the business of manufacturing various products on an
exclusive basis for marketing and distribution.
Evolve approached Manufacturer with a piece of fitness equipment for the
following purpose: strengthening and rehabilitating the lower back and adjacent
areas of human body. Manufacturer determined that Evolve's design was
impractical for manufacture overseas due to its weight and complexity.
Manufacturer has proposed an alternative design that performs many of the same
functions as Manufacturer's design, but that can be manufactured and shipped at
a substantially lower cost due to savings in weight and complexity. Evolve
desires Manufacturer to produce prototypes of the new design. Manufacturer is
willing to incur the cost to do so, but only if Evolve agrees to have
Manufacturer manufacture, on an exclusive basis, the Product, upon the terms and
conditions set forth herein.
In consideration of the mutual promises contained herein, and for other good and
valuable consideration, the receipt of which are hereby acknowledged, the
parties hereto agree as follows:
DEFINITIONS
-----------
For purposes of this Agreement:
1. Definitions. For purposes of this Agreement the following terms shall
have the following meanings:
(a) "Applicable Laws" means all applicable determinations of any
governmental authority and all applicable federal, state or
local laws, statutes, ordinances, rules, regulations and
orders.
1
(b) "Product" means the fitness equipment product known as the
"CorEvolution", which is generally depicted in Schedule A to
Exhibit A hereto. References to the Product will include all
variations and derivations thereof, whether developed during
the prototyping process described in Section 2 hereof or after
commercial release of the Product.
(c) A "Qualified Evolve Termination" means a termination of this
Agreement (i) by Manufacturer due to Evolve's material breach,
(ii) as a result of Evolve not agreeing to the an increase in
price pursuant to paragraph 5.2. A "Qualified Manufacturer
Termination" means a termination of this Agreement by Evolve
due to Manufacturer's material breach.
(d) "Specifications" means the specifications for the Product,
packaging and labeling (if any) as set forth on the attached
Exhibit A. In the event that complete specifications are not
attached to this Agreement at the time it is executed, the
parties shall thereafter mutually agree in writing upon the
completion of the Specifications and attach them hereto as
Exhibit A. For purposes of Section 10, the Specification shall
be deemed to have been provided by Evolve.
(e) "Upsell Products" means products and accessories marketed by
Evolve with the Product that relate to, complement or enhance
the Product.
2. Finalization of Design and Prototype. Based on the CAD files presented
by Manufacturer, Evolve has approved the current design of the Product.
In reliance on Evolve's agreements herein, Manufacturer will prepare
the necessary jigs and other tooling to assemble a prototype (the
"Prototype") of the Product based on the current design for inspection
by Evolve. Evolve shall promptly inspect the Prototype and determine
whether the Prototype conforms to the Specifications and if the
Prototype is reasonably acceptable to Evolve. Evolve will notify
Manufacturer in writing of any problems or deficiencies of the
Prototype and required changes within 10 business days. Manufacturer
shall respond to any reasonable requests of Evolve and produce a new
Prototype for approval by Evolve. Once a Prototype is approved by
Evolve, Evolve will execute Manufacturer's First Article Approval Form
(the "Approval Form") to authorize the manufacture of the Product.
Evolve will use its reasonable commercial efforts to cooperate with
Manufacturer and will not unreasonably withhold or delay execution of
the Approval Form to authorize manufacture of the Product. The parties
acknowledge that Manufacturer may not commence manufacture until the
Prototype has been approved and Approval Form executed, and that
delivery dates must allow time for Prototype approval, ramp-up of the
factory and surface shipping to Port of Los Angeles. Once the Prototype
is approved and Approval Form executed by Evolve, the parties will
agree on the pricing of the Product based on Manufacturer's production
and shipping costs in accordance with Section 5. For purposes of
Section 10, the design approved in accordance with this Section 2 shall
be deemed to have been provided by Evolve.
2
3. Sale of Products and Upsell Products; Packaging.
3.1 Requirements. Subject to the terms and conditions hereafter
set forth, during the "Term" of this Agreement (as defined in
Section 7 below), Evolve agrees to buy from Manufacturer, on
an exclusive basis, all of its requirements for the Product
identified in Exhibit A. During the first three years of the
Term (as defined below), Evolve agrees to purchase a minimum
of 20,000 units of the Product during the first year of the
Term, 30,000 units of the Product during the second year of
the Term and 40,000 units of Product the third year of the
Term (the "Minimum Annual Quantity"), subject to the terms and
conditions of this Agreement, including, without limitation,
Manufacturer's compliance with its obligations hereunder.
Evolve and Manufacturer have agreed on the Minimum Annual
Quantity in good faith, and the parties acknowledge that in
certain circumstances described below this agreement may be
terminated prior to the sale of the entire Minimum Annual
Quantity. Evolve shall submit purchase orders for the Product
from time to time in accordance with Section 3.3 below.
3.2 Packaging. Subject to Evolve's rights with respect to the
protection of its trademark and the determination of text,
color and packaging sizes as addressed in sections 6.1 and 6.3
hereof, Manufacturer shall be responsible for the selection,
sourcing and purchasing of all materials and packaging for the
Product as described on Exhibit A (collectively, the
"Packaging"). Any additional packaging shall be the
responsibility of Evolve unless the parties otherwise agree in
writing.
3.3 Purchase Orders. Each purchase order ("Purchase Order") for
the Product shall be in writing and shall ----------------
specify the quantity of the Product to be manufactured and the
date upon which Evolve desires to have the Product ready for
delivery (the "Requested Delivery Date") unless a shorter lead
time is authorized by Manufacturer. Such Purchase Orders shall
be placed at least sixty (60) days prior to the Requested
Delivery Date. Product must be ordered in whole shipping
container lots. Manufacturer estimates that a standard 20 foot
container will require not more than ____ packaged units and a
40 foot High-Q container will require not more than ____
packaged units. When final packaging has been determined, and
whenever changes to packaging affect the number of units in a
container, Manufacturer will notify Evolve of the number of
units in a whole container lot. Minimum lead time for shipment
and other terms will be set forth in Exhibit A attached
hereto. Subject to Section 3.4, Manufacturer shall deliver the
Product on or before the Requested Delivery Date. Upon
Evolve's delivering a written purchase order to Manufacturer,
Manufacturer shall confirm in writing within three business
days its acceptance or rejection of such Purchase Order. If no
such notice is received from Manufacturer within such three
business day period, Manufacturer will be deemed to have
accepted such Purchase Order, and shall be obligated under
3
this Agreement to timely deliver the Product as set forth in
such Purchase Order, subject to adjustment as set forth in
Section 3.6 hereof.
3.4 Shipment. Prior to being transported from Manufacturer's
factory, all Product shall be packaged according to Evolve's
specifications. All Product will be shipped to the Port of Los
Angeles ______________________ (Note: Need to discuss closer
port to fulfillment company based in Michigan) at
Manufacturer's expense; provided that Evolve may specify in
its purchase order another deep water port in the continental
United States in which event Evolve will be responsible for
all increased shipping costs. Transportation to the final
Evolve destination, which destination shall be specified by
Evolve in the applicable purchase order, is the responsibility
of Evolve. Product will be inspected prior to shipment at
Evolve's expense by PRO QC, or another professionally
certified inspector that is mutually agreeable to the parties
(the "Inspector"), to confirm that the Product conforms to the
criteria to be designated by the parties in the Inspection
Checklist (herein "Clearance"). No units of any Product shall
be shipped to Evolve until such units have satisfied the
Clearance criteria; provided that if Evolve elects not to have
the Inspector inspect a particular shipment, such shipment
shall be deemed to have satisfied the Clearance criteria.
Other than the cost of inspection and a 50% deposit, Evolve
shall have no payment or other obligation under this Agreement
or otherwise with respect to any such units until they have
satisfied such Clearance criteria. Satisfaction of the
Clearance criteria shall constitute acceptance of the Product
by Evolve for all purposes and Evolve shall have no further
conditions to payment for the balance owing with respect to
the accepted shipment. Notwithstanding the foregoing,
acceptance of the Product by Evolve does not affect, in any
way, either party's duties and obligations under this
Agreement. In particular, Evolve agrees that it may not
exercise any right under the UCC to revoke acceptance of a
shipment which has been accepted in accordance with this
Agreement. In the event the Clearance criteria are not
satisfied, the Inspector shall notify the Manufacturer in
writing of the defects and Manufacturer shall have the right
to appeal to the Inspector or correct or repair any defects.
In the event the Clearance criteria are not satisfied,
Manufacturer shall reimburse Evolve for the cost of Clearance
for a shipment of replacement or repaired Products. After
satisfaction of the Clearance criteria (the "Clearance Date"),
all risk of damage and loss to the Product that is the subject
of a shipment transfers to Evolve.
3.5 Artwork. Evolve shall produce and deliver to Manufacturer all
artwork for Product logos and marks ("Materials"), when
applicable and necessary, and Manufacturer shall use such
materials without modification, addition or revision of any
type other than necessary resizing.
4
3.6 Inventory Forecast. For purposes of production and inventory
planning, on or about the first day of each calendar month,
Evolve will provide to Manufacturer a non-binding forecast of
Purchase Orders to be submitted by it during each of the next
six months (the "Forecasts"). The Forecasts will detail the
number of units of the Product estimated to be purchased
through Purchase Orders during the period covered by the
Forecast and anticipated delivery dates. Notwithstanding the
above, to enable Evolve to more accurately gauge initial
demand for the Product, Evolve is not required to submit
Forecasts during the first 60 days after the date the
Prototype is approved. The parties acknowledge that Forecasts
shall be based on Evolve's good faith efforts to accurately
reflect the timing and amount of Product orders based on all
relevant information available to Evolve at the time of the
Forecast. Notwithstanding the foregoing, Evolve will promptly
notify Manufacturer of any material change in the applicable
Forecast, which Evolve anticipates as a result of market
developments or other relevant factors. The parties
acknowledge and agree that any failure or inability of Evolve
to meet any Forecast shall not be deemed a breach of this
Agreement.
3.7 Upsell Products. During the term of this Agreement, the
parties agree that Manufacturer shall have the exclusive right
to manufacture or source manufacturing for Upsell Products.
Whenever Evolve develops a potential Upsell Product, it shall
so notify Manufacturer and the parties will negotiate in good
faith the terms of adding such Upsell Product to this
Agreement. The parties shall add Upsell Products in accordance
with this Section 3.7 by signing or initialing a new Exhibit
A-x describing the Upsell Product and a new Exhibit B-x
setting forth the initial pricing of the Upsell Product, which
Exhibits shall be attached to and form part of this Agreement.
Except as set forth on the relevant Exhibits A-x and B-x, the
terms of sale of the Upsell Products will be the same as the
terms for sale of the Product hereunder. Notwithstanding the
above, Manufacturer may decline the opportunity to add a
particular Upsell Product to the Agreement.
4. Manufacturing Procedures and Warranty.
4.1 Procedures. Manufacturer and Evolve shall mutually agree in
writing upon appropriate procedures to determine whether each
Product conforms to the Prototype (the "Procedures").
Similarly, the packaging designs, containers, dimensions, and
materials shall be approved in writing by Evolve and
Manufacturer and the procedures for determining compliance
therewith attached to this Agreement as a schedule ("Mutual
Procedures").
4.2 Quality Control. Manufacturer shall itself maintain, and shall
require that its subcontractors and any and all raw material
suppliers maintain, a quality control program designed to
assure compliance with the Specifications, Procedures and
Mutual Procedures. Unless otherwise agreed upon by the
5
parties, Manufacturer will provide the manufacturing process,
any required manufacturing technology, manufacturing capacity,
labor, transportation logistics, systems and facilities
necessary for the manufacture, assembly, testing, packaging,
and delivery of the Products in a manner that complies with
the Specifications, and will use its best efforts to identify
the lowest cost/highest quality materials and equipment to
manufacture the Product.
4.3 New Sample, Specifications. In the event that during the Term
the Specifications change or Manufacturer proposes to change
materials or manufacturing practices, it may submit to Evolve
an updated sample of the Product as manufactured by
Manufacturer (the "Sample"). Evolve will have 10 days after
receipt of the Sample to determine whether the Sample conforms
to the Specifications. Unless Evolve notifies Manufacturer
within such 10-day period that the Sample does not conform,
giving the particulars of non-conformance, then all Product
thereafter manufactured by Manufacturer that is substantially
identical to the Sample (subject to normal manufacturing
tolerances) shall be conclusively and irrebuttably presumed to
conform to the Specifications.
4.4 Subcontractors. The Product will be manufactured by
Manufacturer or by subcontractors selected by the
Manufacturer. Manufacturer shall terminate the services of any
subcontractor upon Evolve's prior written notice that such
subcontractor is not performing as required under this
Agreement (i.e., the subcontractor is not providing quality
products or services, etc.) unless the subcontractor cures, to
Evolve's satisfaction, any material deficiency noted by Evolve
within 30 days of Evolve's written notice to Manufacturer. All
delays or damages caused by any subcontractor's failure to
perform its obligations in the manner required of Manufacturer
as set forth in this Agreement ("Subcontractor's Breach")
shall be the obligation of Manufacturer, and Evolve shall have
such rights and remedies against Manufacturer as if the
Subcontractor's Breach initially had been Manufacturer's
breach.
4.5 Warranty & RMAs.
4.5.1 Manufacturer Warranty. Manufacturer warrants for a
period of twelve (12) months from the Clearance Date
of the Products that (a) the Product will conform to
the Specifications, Procedures and Mutual Procedures
applicable to such Product at the time of its
manufacture; and (b) such Product will be of good
material and workmanship and free from defects in the
manufacture, assembly and packaging of the Product.
Manufacturer shall, to the extent possible, pass
through to Evolve any warranties for components of
the Products purchased for Evolve.
6
4.5.2 Product Misuse and Warranty Exclusion. Manufacturer
does not warrant any Products that Manufacturer
demonstrates to have been subjected to mishandling,
accident, misuse, neglect, improper testing, improper
or unauthorized repair, alteration, damage, assembly,
processing or any other inappropriate or unauthorized
action or inaction that alters physical or other
properties in the Products.
4.6 RMA. Manufacturer will repair or replace defective Products
caused by a breach of Manufacturer's warranties in accordance
with Manufacturer's standard return material authorization
process and procedure ("RMA"). If Evolve desires to return a
manufactured Product based on a claim of defective
workmanship, Evolve will request an RMA number from
Manufacturer. Evolve will then send to Manufacturer's Utah
manufacturing facility the defective product with a return
purchase order identifying the RMA number. Manufacturer will
analyze all RMA Products and, if a failure to comply with the
warranty set forth in Section 4.5 is found (a "Warranty
Defect"), and the RMA Products are received by Manufacturer
within 30 days following the end of the warranty period for
the RMA Product, Manufacturer will repair or replace, at
Manufacturer's option, the Product within 30 business days.
Repaired or replacement Products shall be warranted as an
original Product under section 4.5.1. If a Warranty Defect is
found, Manufacturer will pay for all transportation charges
for all Products returned to Manufacturer under warranty and
all transportation charges involved in the return of repaired
warranted Products to Evolve or its distribution agent in the
United States.
4.7 Limitation of Liability. EXCEPT WITH RESPECT TO SECTIONS 4.10,
4.11, 10.1, 11, AND 12, UNDER NO CIRCUMSTANCES SHALL
MANUFACTURER BE LIABLE TO EVOLVE OR TO ANY OTHER PERSON OR
ENTITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT
DAMAGES, LOSS OF GOODWILL OR BUSINESS PROFITS, WORK STOPPAGE,
DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY AND ALL
OTHER DAMAGES, LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES, ARISING
FROM THE SERVICES OR PRODUCTS PROVIDED PURSUANT TO THIS
AGREEMENT. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE OR AS
OTHERWISE SPECIFICALLY STATED IN THIS AGREEMENT OR AN
AMENDMENT THERETO, AND EXCEPT FOR A BREACH UNDER THE PARTIES'
RESPECTIVE CONFIDENTIALITY OBLIGATIONS AND FOR LIABILITY
CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY,
UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE
OTHER UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR
OTHER LEGAL OR EQUITABLE THEORY, FOR ANY PUNITIVE, INDIRECT,
7
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS, LOST
REVENUE OR ANTICIPATED SAVINGS IN CONNECTION WITH THIS
AGREEMENT.
4.8 Inspection. Evolve or its designee may from time to time
inspect Manufacturer's facilities (both domestic and
international) upon 10 days' prior notice and make
recommendations concerning the manufacture, material,
workmanship, testing, and quality control for the Product.
Manufacturer shall give Evolve or its designee reasonable
access to Manufacturer's facilities for these purposes. Such
inspection shall be based on a statistically significant
sample of the Product with a reasonable rate of rejection.
Evolve shall pay for the inspection.
4.9 Records. Manufacturer shall maintain an up-to-date file of
specifications for the Product supplied to Evolve, including,
but not limited to, performance standards, dimensional
information, and material/physical specifications.
4.10 Delays. Acceptance of a Purchase Order by Manufacturer
indicates that Manufacturer will have the capacity and factory
space to produce the necessary quantity of Product on a timely
basis consistent with current production timing. Upon the
request of Evolve, Manufacturer will from time to time inform
Evolve of the amount of factory space allocated for production
of the Product. Manufacturer will inform Evolve immediately of
any occurrence which will or is expected to result in any
delay in ship date or quantity as specified on the Purchase
Order. Manufacturer shall also notify Evolve of all corrective
action being taken to minimize the effect of such occurrence.
Manufacturer intends to have two facilities in China, whether
its own or those of a subcontractor, capable of producing the
Product and if volume warrants a third facility will be added.
If Manufacturer is unable to fulfill a Purchase Order via any
of its facilities in China, then Manufacturer agrees to use
its best efforts to fulfill such Purchase Orders from other
manufacturing facilities in China, at no additional cost or
expense to Evolve.
4.11 Recalls or Seizures.
If any of the Product is the subject of a recall or seizure by
any governmental authority or in the event any governmental
authority requests or suggests that any of the Products be
recalled or withdrawn, and Evolve and Manufacturer agree, or
in the event Evolve and Manufacturer shall deem that such a
recall is necessary or advisable because the Product does not
comply with the governmental law or regulations at issue,
Evolve will be solely responsible for executing such recall or
taking all legal measures to release the Product from seizure
or impoundment, and the expense of such actions shall be
allocated between the parties as set forth below.
8
If the recall or seizure is attributable a failure of the
Specifications to comply with applicable law or a safety or
performance issue relating to the Specifications, Evolve shall
bear the entire cost and expense of remedial measures to
comply with such applicable law. Manufacturer represents and
warrants that, to the best of its knowledge, it is not aware
of facts or circumstances that would make the Specifications
not in compliance with applicable law or the existence of any
safety or performance issue relating to the Specifications. If
the recall or seizure is attributable to a failure of
Manufacturer to comply with applicable law regarding export or
other customs regulations, or with respect to the conditions
of manufacture or the employment of persons engaged therein,
or with other applicable law including, without limitation,
the payment of taxes (collectively "Legal Failure"),
Manufacturer shall indemnify Evolve for all direct costs and
expense of the recall or seizure including, without
limitation:
(a) All costs and expenses of notifying the trade or
consumers of said recall or withdrawal to the level
acceptable to the regulatory agency;
(b) All freight charges actually incurred by Evolve, or
paid by Evolve to its distributors, related to the
retrieval of the Products; and
(c) The salaries of any additional employees, contractors
and agents that Evolve is required to retain solely
to effect the recall or seizure.
If the parties disagree about the cause of a recall or
seizure, Evolve shall submit representative samples to an
independent third party approved by both parties, which shall
make its own determination as to the cause of the recall or
seizure, which determination shall be final and binding upon
the parties. Evolve will not delay a required recall or
seizure to wait for the decision of the third party.
5. Prices; Payment
5.1 Price. Evolve shall pay Manufacturer for the Product purchased
at the prices agreed to after the Prototype is approved in
accordance with Section 2 (the "Price") depending on the
cumulative number of units of Product that have been purchased
by Evolve. Such Pricing shall be set forth in Exhibit B to be
agreed to by the parties and executed by both parties after
approval of the Prototype and shall become, upon execution, a
part of this Agreement. In the event the parties cannot agree
on the Price, this Agreement shall be immediately terminated
in accordance with Section 7.
5.2 Adjustment in Price. Manufacturer shall have the right to
increase the Price if its actual, third party U.S. dollar
denominated costs increase and result in increased costs;
provided, however, that in no event shall the Product prices
9
increase by more than the sum of (a) any increase in
Manufacturer's actual out-of-pocket cost of production
materials, including materials purchased from third party
subcontractors, (b) any increase in Manufacturer's actual
out-of-pocket cost for shipping, customs, taxes or similar
charges, and (c) any increase in Manufacturer's labor costs.
Notwithstanding the above, the Price will not increase during
the first twelve (12) months of the Term. Subject to the terms
herein, any increase in Price shall be effective upon 30 days'
written notice to Evolve of such change. Such change shall
apply to any new orders made after the effective date of the
change. Any purchase orders that were placed for immediate
delivery consistent with past purchase orders but remain
unfilled in whole or in part at the effective time of such
change shall be delivered at the old price. If Manufacturer
makes a price change to the Product that renders it
uneconomical for Evolve to continue to market the Product,
then Evolve shall have the option, exercisable within 60 days
after notice of the price change, to terminate this Agreement
without penalty on 60 days' written notice; provided that
Section 7.5.3 shall apply with respect to Evolve's right to
purchase the Product or any substantially similar product from
a third party following such termination.
5.3 Payment Terms. Payment for each order of Product placed by
Evolve shall be made as follows: 50% of the total payment for
the number of units ordered shall be paid by wire transfer of
immediately available funds, upon the placement of the order,
with the balance due before shipment arrives at the U.S. port
of destination. Manufacturer will notify Evolve of the
shipment date and anticipated arrival date. Manufacturer will
release the Xxxx of Lading to Evolve or its designee within
three business days after receiving payment as set forth
herein regardless of whether the shipper has arrived in port.
Any amounts not paid when due shall bear interest at the rate
of 1.5% per month or the highest rate allowed by law. Any
storage or demurrage charges incurred at the port pending
receipt of Evolve's payment shall be paid by Evolve.
Manufacturer will consider in good faith proposals from Evolve
for alternative financing that provides Manufacturer with
equal or greater security for payment, but Manufacturer shall
have sole discretion to accept or reject any such proposal.
6. Development, Licensing and Ownership.
6.1 Product and Product Marks. Without affecting in any way
Evolve's duties and obligations under this Agreement to
Manufacturer, including its payment responsibility under
section 5.3, as between Manufacturer and Evolve, Evolve shall
own all right, title and interest in and to the Product.
Evolve shall sell the Product under its own trademarks,
service marks, symbols or trade names, if any ("Evolve
Marks"). Solely in connection with the performance of this
Agreement, Evolve grants Manufacturer the right to reproduce
and print on the Product the Evolve Marks as are designated by
10
Evolve. Manufacturer agrees that it will not use the Evolve
Marks in advertising or promotional materials or place the
Evolve Marks on goods or otherwise without prior written
consent of Evolve. Manufacturer agrees that it shall not sell
or distribute, or assist any party other than Evolve to sell
or distribute, in any manner whatsoever any goods marked or
designated with the Evolve Marks, or any derivation thereof,
except to Evolve, without obtaining Evolve's prior written
consent.
6.2 Repurchase Responsibility. Evolve may change the
Specifications for the Packaging (if any) with at least 30
days' prior notice to Manufacturer. Evolve may change the
Specifications for the Product with at least 30 days' prior
notice to Manufacturer; provided that if such change in
Specifications will increase Manufacturer's costs (including
costs of raw materials, manufacturing or quality control) the
change will not be effective until the parties mutually agree
to appropriate adjustments to the purchase price of the
Product. Manufacturer shall promptly implement the requested
changes to the Specifications and Evolve shall (i) reimburse
Manufacturer, within 30 days of the date of invoice, for the
cost of any packaging materials or finished Product in
inventory that is rendered obsolete because of the changes;
and (ii) pay any agreed upon increase in the cost of
production of the Product due to the changes. In no event
shall Evolve be responsible for purchasing any raw material,
components or other supplies which Manufacturer can use in the
ordinary course of its business or other products sold to
other companies.
6.3 Packaging Materials and Artwork. If Manufacturer is
responsible for the development of any Packaging, Manufacturer
shall maintain sufficient inventory of Packaging, as
applicable, to ensure continuity of service in accordance with
Evolve's Product forecasts. Evolve shall have all rights and
title to art, plates, negatives or designs prepared for Evolve
by Manufacturer or its printer, lithographer, or bag, box, or
carton manufacturer/vendor, and all artwork shall become the
possession of Evolve upon notice of termination of this
Agreement by either party. Evolve shall pay the Manufacturer
for the cost of preparing these materials, subject to Evolve's
prior written approval of such costs. The designs, including
texts, color and sizes of Packaging shall be determined by
Evolve. The fee payable by Evolve for Manufacturer supplied
artwork, if any, shall be negotiated by the parties.
7. Term and Termination.
7.1 Term. The Term of this Agreement shall commence upon its
execution and shall continue for a period of five years
thereafter unless terminated as set forth herein and shall
continue thereafter on a month to month basis unless
terminated by either party on written notice. Any termination
11
pursuant to the preceding sentence shall be effective 30 days
after the date of the notice.
7.2 Early Termination for Failure to Agree on Price Prior to
Production. In the event the parties cannot agree, after the
Prototype has been approved by Evolve, upon the pricing terms
of the Product in accordance with Section 5.1, this Agreement
shall be terminated. Upon such termination, the Manufacturer
shall deliver to Evolve a statement with the costs incurred by
Manufacturer in producing any Prototypes. Evolve agrees to
promptly pay such costs to Manufacturer within 10 days. In
such event, although Manufacturer agrees that the Product, its
design and the intellectual property relating to the Product
are the property of Evolve, Evolve agrees that it will not
manufacture, or cause any third party to manufacture, any
Product or any product that is substantially similar to or
derived from the Product after the termination of this
Agreement.
7.3 Termination for Material Breach. Either party may terminate
this Agreement on 30 days' prior written notice to the other
party based on a material breach of this Agreement by the
non-terminating party, unless such breach is cured within such
30-day period or, in the event of a non-monetary breach that
cannot reasonably be cured within 30 days, that the breaching
party commences within such thirty day period steps calculated
to cure the breach as soon as practicable and the cure is
completed within 45 days. In the event of a termination by
Manufacturer due to Evolve's breach, Evolve grants the
Manufacturer a non-exclusive license for a period of 180 days
following termination to utilize Evolve's intellectual
property (including its patents, designs and trademarks)
solely for the purpose of liquidating Manufacturer's inventory
of Products (including Product assembled from Manufacturer's
inventory of raw materials and work in progress). In the event
of termination of this Agreement due to Manufacturer's breach,
(a) Evolve shall have the right, but not the obligation, to
purchase, at the price determined below, all or any part of
the supply of work in progress ("WIP"), packed, labeled or on
hand Product if such right is exercised within 10 days after
termination. In no event shall Evolve be responsible for
purchasing any raw material, components or other supplies that
Manufacturer can use in the ordinary course of its business or
other products sold to other companies. The price for any
items sold will be (i) for finished Products, the price
provided herein, (ii) for all other items, Manufacturer's
actual third party cost, plus a xxxx-up of 10%; provided that
such sale is "as is, where is" and Evolve shall be responsible
to promptly remove the purchased items from Manufacturer's
facility.
7.4 Early Termination. If Evolve does not have any other valid
means of terminating this Agreement pursuant to the terms
hereof, and Evolve still desires to terminate this Agreement,
this Agreement may still be terminated by Evolve prior to the
sale of the Minimum Annual Quantity for each of the first
12
three years of the Term, or at any time during the remainder
of the Term, by prior written notice if all of the following
conditions apply:
(a) All invoices and payment for Product subject to
non-cancelable orders have been paid in full (whether
or not then due) and Evolve is not in default under
this Agreement.
(b) Evolve, through a senior executive officer, certifies
to Manufacturer in writing that (1) Other than sales
of existing inventory of the Product purchased from
Manufacturer, Evolve is no longer advertising or
promoting the Product and has no plans to advertise
or promote the Product or any substantially similar
product, (2) continued sale of the Product is no
longer profitable to Evolve, (3) other than sales of
existing inventory of the Product purchased from
Manufacturer, Evolve has no plans or intentions to
manufacture, distribute or sell the Product or any
substantially similar product, and (4) Evolve is
aware of agrees to abide by its exclusivity
provisions as set forth above. Good faith
certification under this Section 7.4(b) will not
preclude Evolve from again advertising, promoting,
manufacturing, distributing or selling the Product if
circumstances subsequently change and at least three
(3) months have elapsed since the later of
termination or the last televised advertising of the
Product.
(c) Evolve submits to Manufacturer at the time of
Evolve's notice of termination, a Purchase Order for
the shipment as soon as manufacturing schedules
permit of a number of units of Product equal to three
(3) times the average monthly number of units of
Product purchased during the term preceding Evolve's
notice of termination, excluding any months in which
no Product was purchased (the "Final Release"). In
lieu of the Final Release, if requested by Evolve in
its notice of termination, Evolve may (i) purchase
from Manufacturer, Manufacturer's then existing
inventory of Product, and (ii) pay to Manufacturer a
release payment (the "Release Payment") equal to the
product of (x) Manufacturer's per unit gross profit
on the Product at the time of termination, multiplied
by (y) the number of units which would have been
required to be purchased in the Final Release, less
the number of units in the inventory purchased
pursuant to clause (i). If Evolve elects the Release
Payment in lieu of the Final Release, Manufacturer
will notify Evolve of its gross profit per unit and
existing Product inventory as soon as practicable
after receipt of Evolve's notice of termination, and
the Release Payment shall be due and payable within
30 days after Evolve's receipt of Manufacturer's
notice. If the Release Payment is made, the number of
units which would have been included in the Final
Release will be deemed to have been sold hereunder
for purposes of Section 7.5.3.
13
7.5 Rights Upon Expiration or Termination.
7.5.1 Purchase Orders. In the event of expiration of this
Agreement, Manufacturer will comply with all
outstanding Purchase Orders for delivery within 60
days after expiration. In the event of a Qualified
Manufacturer Termination by Evolve, Evolve will have
the right to cancel any outstanding Purchase Orders
or to require Manufacturer to finish such Purchase
Orders.
7.5.2 Inventory. In the event of expiration or termination
of this Agreement, Evolve will have the right, but
not the obligation, to purchase any Products in
inventory that Manufacturer has in its possession.
Evolve shall have the right, but not the obligation,
to purchase Manufacturer's inventory of the Products
by giving notice to Manufacturer within 20 days after
the effective date of the expiration or termination.
The purchase price for the finished manufactured
Product shall be the price as provided herein plus
actual freight, handling charges, customs duties and
taxes if paid by Manufacturer on the shipment to
Evolve's possession and in sound condition.
7.5.3 No Further Rights. In the event of expiration or
termination of this Agreement prior to the sale of
50,000 units of the Product hereunder (the "Threshold
Quantity"), Evolve shall have no further rights to
manufacture or to cause a third party to manufacture
the Product or any substantially similar product
utilizing any of the intellectual property relating
to the same unless Evolve shall first pay to
Manufacturer a fee (the "Recoupment Fee") equal to
(i) seven Dollars ($7.00) per unit, multiplied by
(ii) the difference between the Threshold Quantity
and the number of units of Product actually sold
hereunder. The Recoupment Fee, if applicable, shall
be payable no later than the time when Evolve
commences manufacture of the Product or enters into
agreements for a third party to manufacture the
Product. Upon the request of Manufacturer given from
time to time following termination or expiration of
this Agreement, Evolve shall promptly certify whether
or not it has directly or indirectly commenced
manufacture of the Product or any substantially
similar product.
7.5.4 Survival. The following terms will survive the
expiration or termination of this Agreement: Sections
4.5, 4.6, 4.7, 4.11, 6.1, 7.2, 7.3, 7.4, 7.5, 9, 10,
11, 12, and 15.6. Upon expiration or termination of
this Agreement for any reason whatsoever, (i) all
amounts then properly owed by Evolve to Manufacturer
14
shall become immediately due and payable and (ii)
except as specifically provided in this Section 7,
all rights and obligations of the parties shall
terminate.
8. Compliance with Regulations.
8.1 Regulatory Reports. Each party shall promptly furnish the
other with copies of reports or other information relating to
the Product prepared by it, or on its behalf, to be filed with
any governmental authorities or received from any governmental
authorities. Any and all issues concerning the distribution,
advertising or promotion of the Product shall be addressed and
resolved by Evolve. Any and all issues raised with respect to
the manufacturing of the Product shall be resolved by
Manufacturer.
8.2 Export Control. Manufacturer agrees that it will not export,
re-export, resell or transfer, or otherwise ship or deliver
any Product, assembly, component or any technical data that
violate any export controls or limitations imposed by the
United States or any other governmental authority, or to any
country for which an export license or other governmental
approval is required at the time of export without first
obtaining all necessary licenses or other approvals. Evolve
acknowledges that Manufacturer will transfer the
specifications and other technical data regarding the Product
to its manufacturing facility in China, and to the best of
Evolve's knowledge such transfer will not violate such export
controls or limitations. Evolve will provide Manufacturer with
all licenses, certifications, approvals and authorizations in
order to permit Manufacturer to comply with all export laws,
rules and regulations for the shipment and delivery of the
Products. Evolve shall also be responsible for complying with
any legislation or regulations governing the importation of
the Products into the country of destination and for payment
of any duties thereon.
9. Representations and Warranties.
9.1 Both Parties. Each Party warrants to the other that (i) it is
an entity duly organized, valid, existing and in good standing
under the laws of the state, province or country of its
incorporation or establishment and has the corporate or
equivalent power to own its assets and properties and to carry
on its business as now being conducted; (ii) its obligations
hereunder shall be performed in full compliance with the
Applicable Laws; (iii) it will cooperate with the other, as
necessary, to remain in full compliance with the Applicable
Laws; (iv) the execution, delivery and performance of this
Agreement have been duly authorized, do not violate its
certificate of incorporation, by-laws or similar governing
instruments or Applicable Law and do not, and with the passage
of time will not, materially conflict with or constitute a
breach under any other agreement, judgment or instrument to
15
which it is a party or by which it is bound; (v) its
employment and labor practices comply in all respects to
Applicable Law in the jurisdiction in which such labor is
performed; and (vi) this Agreement is the legal, valid and
binding obligation of such party, enforceable in accordance
with its terms.
9.2 Manufacturer. Manufacturer warrants and represents: (i) it
will not and has not knowingly infringed any copyright,
patent, trade secret or other property right of any party in
the performance of the services required by this Agreement;
(ii) it will obtain from Manufacturer's employees and
subcontractors, if any, any necessary assignment, license, and
release of all, if any, interests in the Product; and (iii)
Manufacturer's actions in manufacturing and designing the
Product will not cause the Product to be in violation of
consumer product safety laws or the requirements of other
Applicable Laws.
9.3 Evolve. Evolve warrants and represents: (i) it will not and
has not knowingly infringed any copyright, patent, trade
secret or other property right of any party in the provision
of the design and any specifications or the sale of the
Product; (ii) there is no suit, action, arbitration, or legal,
administrative or other proceeding or governmental or
quasi-governmental investigation pending or, to the best
knowledge of Evolve, threatened against or affecting the
Product; (iii) it will obtain from Evolve's employees and
subcontractors, if any, any necessary assignment, license, and
release of all, if any, interests in the Product; and (iv) the
design and specifications of the Product, to the extent
provided by Evolve, will conform to all consumer product
safety laws and meet the requirements of all other Applicable
Laws.
10. Indemnification and Insurance.
10.1 Manufacturer Indemnity. Manufacturer will defend, indemnify
and hold harmless Evolve and its Members, employees,
directors, officers and agents against any third party
allegations, demands, suits, investigations, causes of action,
proceedings or other claims ("Third Party Claims") and from
all damages, liabilities, judgments, costs and expenses
(including attorneys' fees and costs) and other such losses
("Losses") which are based on, and arise in connection with,
such Third Party Claims to the extent based on any of the
following: (i) any claim that the Product, including the
Product Packaging, is defective, including without limitation,
illness, personal injury or death caused by the Product or any
other product liability claim related to the Product, which
results from the design or Specifications provided by
Manufacturer, (ii) any grossly negligent act or omission by
Manufacturer, including, without limitation, those relating to
or affecting the condition, quality or character of the
Product; (iii) any failure of Product to conform with the
applicable Specifications; (iv) any failure of Manufacturer to
16
comply with any Applicable Law; or (v) any other breach of
Manufacturer's obligations under this Agreement, including,
without limitation, any representations or warranties of
Manufacturer.
10.2 Evolve Indemnity. Evolve will defend, indemnify and hold
harmless Manufacturer, its subcontractors and their respective
employees, directors, officers and agents any Third Party
Claims (as defined above) and any Losses (as defined above)
which are based on, and arise in connection with, such Third
Party Claims and to the extent based on any of the following:
(i) any negligent act or omission by Evolve relating to
Evolve's design and Specifications for the Product or
marketing and promotion of the Product; (ii) the Product
infringing upon any intellectual property rights of a third
party, including, without limitation, patent, copyright, trade
secret, trademark, etc.; (iii) any failure of Evolve to comply
with any Applicable Law; (iv) any other breach of Evolve's
obligations under this Agreement, including any
representations or warranties of Evolve; or (v) any allegation
of illness, personal injury or death caused by the Product or
any other product liability claim related to the Product or
any claim that the Product is defective, which is based on or
results from the design or Specifications provided by Evolve.
10.3 Indemnification Procedures. The Party entitled to
indemnification under this Section 10 (the "Indemnified
Party") will provide the Party obligated to provide
indemnification under this Section 10 (the "Indemnifying
Party") with prompt notice of any Third Party Claim for which
its seeks indemnification, provided that the failure to do so
will not excuse the Indemnifying Party of its obligations
under this Section 10 except to the extent prejudiced by such
failure or delay. The Indemnifying Party will defend any such
Third Party Claim and have the sole right to control the
defense and settlement of the Third Party Claim, provided that
the Indemnified Party may not, without the Indemnified Party's
consent, enter into any settlement, which admits guilt,
liability or culpability on the part of the Indemnified Party.
The Indemnified Party will provide reasonable cooperation to
the Indemnifying Party in defending any Third Party Claim.
10.4 Insurance. During the Term of this Agreement and for a period
of six months thereafter, Manufacturer agrees to maintain a
product liability insurance policy with an insurance carrier
with respect to any Product sold by it hereunder with at least
$1,000,000 per occurrence and at least $2,000,000 in the
aggregate. Such policy shall name Evolve as an additional
insured (not just as a "Vendor") Manufacturer shall pay all
premiums relating to such policy. Manufacturer shall provide
Evolve with a certificate of insurance, which provides that
Evolve, as the additional insured, shall be notified, in
writing, by the insurance carrier of change in the policy
(including any termination), not less than 30 days prior to
the effective date of such change (including termination)
17
10.5 Confidentiality. Each Party agrees that it shall not, directly
or indirectly, at any time divulge or communicate to any
person, or use to the detriment of a party to this Agreement,
or for the benefit of itself or any other person, any
proprietary information or technology of the other party.
Except as otherwise required by law, any proprietary
information or technology received by a party, or its or their
representatives which is clearly denoted as confidential shall
be kept confidential and shall not be used or disclosed for
any purpose other than in furtherance of the purposes of this
Agreement. This obligation of confidentiality shall not extend
to information that (a) is or becomes generally available to
the public other than as a result of a disclosure by a party
in violation of this Agreement or any other confidentiality
agreement, (b) was in the possession of a party prior to its
receipt from the other party, or (c) becomes available to a
party or its Affiliate on a nonconfidential basis from a
source other than a party to this Agreement, provided such
source is not in violation of a confidentiality agreement with
the party whose information is being disclosed.
10.6 Employees, Agents and Representatives. Each Party represents
and warrants to the other that it has adopted policies and
procedures with respect to the receipt and disclosure of
confidential or proprietary information, with its employees,
agents and representatives. Each party represents and warrants
to the other that it will exert all reasonable commercial
efforts to cause its employees, agents, subcontractors and
representatives to maintain and protect the confidentiality of
the other party's proprietary information and technology. The
confidentiality obligation set forth in this Agreement shall
be observed for the term of the Agreement and for a period of
three years following the termination of the Agreement. Each
Party acknowledges that a breach of this provision may cause
the non-breaching party irreparable damage, for which the
award of damages would not be adequate compensation.
Consequently, the non-breaching party may institute an action
to enjoin the breaching party from any and all acts in
violation of those provisions, which remedy shall be
cumulative and not exclusive, and shall be in addition to any
other relief to which the non-breaching Party may be entitled
at law or in equity and such remedy shall not be subject to
the arbitration provisions of Section 15.6.
11. Non-Solicitation. Evolve further agrees that during the term of this
Agreement and for a period of three years from the date of a Qualified
Evolve Termination, Evolve will not, on behalf of itself or any
competitor of Manufacturer, (i) compete for, or engage in the
solicitation of, or attempt to divert or take away from Manufacturer,
any customer or supplier of Manufacturer who has done business with
Manufacturer during the 12 months immediately preceding the termination
of the Agreement for the purpose of providing to or having manufactured
by such a customer products and services that are competitive with the
Product; (ii) compete for, solicit or attempt to divert or take away
18
from Manufacturer any prospective customer that has expressed an
interest in doing business with Manufacturer, and about which Evolve
learned while the Agreement was in effect, for the purpose of providing
products and services that are competitive with the Product; or (iii)
hire or engage or attempt to hire or engage any individual, or attempt
to induce an individual to terminate their employment, who was an
employee of Manufacturer at any time during the 12 months immediately
prior to the termination of the Agreement.
Manufacturer further agrees that during the term of this Agreement and
for a period of three years from the date of a Qualified Manufacturer
Termination, Manufacturer will not, on behalf of itself or any
competitor of Evolve, (i) compete for, or engage in the solicitation
of, or attempt to divert or take away from Evolve, any customer of
Evolve who has done business with Evolve during the 12 months
immediately preceding the termination of the Agreement for the purpose
of providing to such a customer products and services that are
substantially identical to the Product; (ii) compete for, solicit or
attempt to divert or take away from Evolve any prospective customer
that has expressed an interest in doing business with Evolve, and about
which Manufacturer learned while the Agreement was in effect, for the
purpose of providing products and services that are substantially
identical to the Product; or (iii) hire or engage or attempt to hire or
engage any individual, or attempt to induce an individual to terminate
their employment, who was an employee of Evolve at any time during the
12 months immediately prior to the termination of the Agreement.
11.1 Non-Competition. During the term of this Agreement, and for a
period of three years from the date of a Qualified
Manufacturer Termination or Qualified Evolve Termination of
this Agreement or the expiration of this Agreement, both
parties agree that they shall not:
(a) engage directly or indirectly, whether for itself or
as employee or agent of or consultant or advisor to
any person or any company, firm or other business
entity, in marketing or furnishing goods products or
services that are competitive with the Product; nor
(b) have any interest as a proprietor, partner, director
or stockholder in any company firm, or other business
entity that manufactures or sells products or
services that are competitive with the Product except
that nothing herein shall limit a party from owning
up to 5% of the aggregate voting stock of any such
company, firm or entity that has any class of stock
registered under the provisions of Section 12 of the
United States Securities Exchange Act of 1934.
As used in this Section 11, the phrase "products and services
competitive with the Product", means products and services,
whether now known or subsequently developed, that are intended
for the identical commercial purpose as the Product and are
substantially identical to the Product in form and function.
Evolve acknowledges that Manufacturer designs and manufactures
19
exercise and fitness equipment for third parties in the
regular course of its business and such activities will not be
considered "products and services competitive with the
Product" unless the third party product is a direct copy or
knock-off of the Product. This Section 11 shall not apply to
Evolve if it has purchased the Threshold Quantity of Product
hereunder or if it has paid the Recoupment Payment to
Manufacturer.
12. Intellectual Property. Evolve hereby grants to Manufacturer a
non-exclusive, royalty-free license to its Intellectual Property solely
to the extent necessary for Manufacturer to perform its obligations
hereunder. Such rights may be sublicensed to subcontractors solely for
to the extent necessary and for the purpose of performing
Manufacturer's obligations under this Agreement. Evolve shall retain
all right, title and interest in Evolve's Intellectual Property.
Manufacturer hereby grants to Evolve a non-exclusive, royalty-free
license to its Intellectual Property solely to the extent necessary for
Evolve to perform its obligations hereunder. Manufacturer shall retain
all right, title and interest in Manufacturer's Intellectual Property.
Except as set forth in this Section and in Section 6, each Party hereby
acknowledges and agrees that it does not have and shall not acquire,
any interest in any other party's Intellectual Property trademarks,
trade names or trade dress unless otherwise expressly agreed to in a
writing executed by both Parties. For purposes of this Agreement,
"Intellectual Property" means all intellectual property rights
recognized under any jurisdiction, including, without limitation,
patents, copyrights, trademarks and trade secrets.
13. No Conflict. Manufacturer and Evolve acknowledge that they have not
previously entered into any contractual arrangement that would conflict
with the rights granted, or the services to be provided by Manufacturer
or Evolve hereunder.
14. Force Majeure. Except as provided for in Section 4.10, each shall be
excused for any failure or delay in performance hereunder, in whole or
in part, to the extent caused by events beyond its reasonable control,
such as fire, embargo, strikes (other than strikes of a party or its
contractors), wars, acts of God, and acts of terrorism, provided,
however, that a Party will not be excused from any failure or delay to
the extent it could have been avoided by the use or reasonable
precautions or to the extent such party can perform by using
commercially reasonable efforts.
15. Miscellaneous.
15.1 Amendment. This Agreement may be amended, modified or
supplemented only by a writing signed by the party or parties
sought to be bound thereby.
15.2 Entirety. This Agreement and the Exhibits hereto constitute
the entire agreement of Manufacturer and Evolve with respect
to the subject matter hereof, and supersede all prior or
20
contemporaneous agreements or understandings of Manufacturer
and Evolve with respect to such subject matter.
15.3 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws
effective during the term hereof, such provisions shall be
fully severable and this Agreement shall be construed and
enforced as if such legal, invalid or unenforceable provision
never comprised a part hereof, and the remaining provisions
hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or
by its severance herefrom.
15.4 Captions. The captions of this Agreement are for convenience
of reference only and shall not limit or otherwise affect any
of the terms or provisions hereof.
15.5 Notices. Any notice or communication required or permitted to
be delivered hereunder shall be in writing addressed to the
party to be notified, and shall be delivered by depositing it
with a nationally recognized overnight delivery service or in
the United States mail, postage prepaid, and either registered
or certified with return receipt requested, or by confirmed
facsimile to the fax numbers indicated below, and shall be
deemed to be effective upon receipt for overnighted or faxed
notice and or three days after being sent for mailed notice.
For this purpose, the addresses of the parties shall be:
Evolve: Evolve Projects, LLC
X.X. Xxx 00000
Xxxxx, XX 00000
Attn: Xxxx Xxxx
Fax: (___) __________
With a copy to: Xxxxxxx, Manna & Diamond, LLC
Attn: Xxxxxxx X. Xxxxxx, Esq.
00 X. Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Manufacturer: CirTran Corporation
0000 Xxxxx 0000 Xxxx
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
15.6 Applicable Law. This Agreement and rights and obligations of
the parties hereto shall be governed, construed and enforced
in accordance with the laws of the State of Utah. Any
21
controversy between Manufacturer and Evolve arising out of or
relating to this Agreement or the breach thereof, shall be
settled by binding arbitration, in accordance with the rules
then obtaining of the American Arbitration Association or
other mutually agreeable ADR services, and any such
arbitration shall be held in Salt Lake City, Utah or another
location that is mutually agreeable to the parties. Both
parties consent and agree to the jurisdiction and venue for
such arbitration, and, solely for then purposes of the venue
of the arbitration, waive any and all challenges on the basis
of jurisdiction, venue or forum non conveniens.
15.7 Facsimile; Counterparts. The parties agree that signature by
facsimile shall hereby be deemed an original signature, and
fully binding upon the parties hereto. This Agreement may be
executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall constitute
one and the same instrument.
15.8 Business Day. If any time period set forth in this Agreement
expires on any day other than a business day; i.e. upon a
Saturday, Sunday or legal or bank holiday, such period shall
be extended to and through the next succeeding business day.
IN WITNESS WHEREOF, Evolve and Manufacturer have executed this
Agreement as of the date first set forth above.
EVOLVE PROJECTS, LLC,
an Ohio limited liability company
By: /s/ Xxxx Xxxx
-----------------------------
Name: Xxxx Xxxx
Its: President
CIRTRAN CORPORATION,
a Nevada corporation
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Its: President
22
Exhibit A
---------
Product Description, Minimum Lead Time
23
Exhibit B
---------
Product Pricing
24
--------------------------------------------------------------------------------
