THIS MARKETING AGENCY AGREEMENT
Made as of the 21st day of September, 2006
BETWEEN:
WATAIRE INTERNATIONAL, INC., A NEVADA CORPORATION WHICH IS A WHOLLY OWNED
SUBSIDIARY OF CIMBIX CORPORATION, A WASHINGTON CORPORATION (JOINTLY REFERRED TO
AS THE "COMPANY")
AND
P 204 ENTERPRISES LTD.
P204 ENTERPISES LTD. 000 XXXXXXX XXXXX, XXXXXXX XX,
XXX XX0 XXXXXX
(The "Marketing Agent")
WHEREAS, Wataire Industries, Inc., a Nevada corporation, is the legal and
beneficial owner of all right, title, intellectual property, and interest in and
to the trade name, copyright, brand and trademark "Wataire" with respect to
Wataire's proprietary water-generating machines (the "Product").
WHEREAS, Wataire granted a worldwide license to the Company to market and
distribute the Products and the Company have the rights to use packaging,
accessories, and promotional materials for the purposes of selling the Products;
WHEREAS, The Marketing Agent has requested and the Company has agreed to
grant to the Marketing Agent, the distribution and marketing rights for private
label branded Products on the terms and conditions hereof.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and mutual covenants and agreements hereinafter set forth, the
Marketing Agent, the Company, and Wataire International agree as follows:
1.00 APPOINTMENT
1.01 The Company hereby appoints the Marketing Agent its Marketing Agent for
private label branded products upon the terms and conditions hereinafter
set forth, and the Marketing Agent hereby accepts such appointment.
1.02 SCOPE OF APPOINTMENT: Providing that the Marketing Agent has not breached
any provisions of this agreement and provided further that the Marketing Agent
diligently and faithfully carries out the duties and obligations imposed on it
by this Agreement, the Marketing Agent shall, during the term of this Agreement,
and any extended period of Agreement or upon renewal of this Agreement, be the
Wataire marketing Agent of the Company selling private label
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products on a global basis. The Company shall not appoint any other Private
Label Marketing agent nor otherwise distribute or sell the Marketing Agent's
branded product. The Marketing Agent also agrees to exclusively purchase all
atmospheric water generating related products from the Company.
Notwithstanding the Company's appointment of the Marketing Agent as its private
label Marketing Agent and the Marketing Agent's agreement to exclusively
purchase all atmospheric water generating products from the Company, the Company
reserves the right, at its sole discretion, to manufacture and sell its products
under any other private label brand on the following conditions:
(i) The Company agrees not to manufacture or sell its atmospheric
water generating related products to or under any other private label
brand other than the "Wataire" brand(s), any other brand developed by
the Company for its own sales, or the Marketing Agent's private label
brand(s) for less than a minimum of 20% over the standard invoice
price to the Marketing Agent before freight, taxes and duties.
(ii) The Marketing Agent will use its best efforts assist the Company
by contributing its expertise on successful brand creation and
development, and the Company will endeavor to ensure the private label
brand does not create undue market channel confusion or make available
any foreseeable technical advantages that are not also available to
the Marketing Agent's brands.
(iii) The Company and the Marketing Agent shall equally share the
revenues from any competitive private label brand introduced by the
Marketing Agent, which revenues are above the amounts over the normal
invoice price to the Marketing Agent before freight, taxes and duties.
The Marketing Agent agrees to bring all private label requests from
its retail market channel customers to the Company and, if the Company
agrees to supply the retailer's private label brand, then the
Marketing Agent will be compensated as in 1.04 above. This provision
is to prevent loss of any prospective private label sale and insure
cooperation between the Company and the Marketing Agent.
1.03 PRICING POLICY: Prices are subject to revision and change by the Company
from time to time, and the Company will make every effort to provide the
Marketing Agent 30-45 days notice of any price changes.
1.04 SUB AGENTS: The Company grants the right to the Marketing Agent to appoint
Sales Dealers and Sub-Distributors, such appointments shall be at the Marketing
Agents expense, subject to the provisions of Section 4.02 below and subject to
prior written approval by the Company
1.05 SALES ACTIVITIES: The Company grants the rights to the Marketing Agent to
market promote and sell the private label branded products.
1.06 Sales quota: The Company agrees that only the sales or orders generated
directly by the Marketing Agent's efforts for the sale of the Marketing Agent's
branded products will be counted as part of any required sales quota.
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1.07 CUSTOMER INQUIRIES. The Company covenants and agrees that all inquiries
with respect to private label brands, or orders for, the Marketing Agents brand
of Products received by the Company shall be referred to the Marketing Agent for
the Marketing Agent's attention in accordance with the terms of this agreement.
1.08 The Marketing Agent covenants and agrees that all inquiries with respect to
private label brands or orders for the Product received by the Marketing Agent
that he cannot appropriately service shall be referred to the Company for the
attention of the Company.
2.00 TERM
The term of this Agreement shall be for a period of five years and will commence
immediately upon execution of this agreement.
RENEWAL.
The Company and the Marketing Agent agree to negotiate an extension to this
agreement for a further five-year period, if, within the term of this Agreement,
the Marketing Agent has fulfilled all of its obligations and duties hereunder.
3.00 OBLIGATIONS OF THE AGENT
During the term of this Agreement the Marketing Agent shall use its best efforts
to advertise and promote the sale of the private branded Products and to make
regular and sufficient contact with any prospective customers.
3.01 The Marketing Agent agrees to supply the Company with quarterly records of
all contacts made by the Marketing Agent's representatives; and
3.02 The Marketing Agent assumes all liability, responsibilities and expenses
for "After Sales Service", and must work towards stocking a minimum quantity of
replacement parts equal to 3-4% of its projected sales volume.
3.03 The Marketing Agent agrees to limit his sales activities to the private
label branded product unless otherwise authorized by the Company.
4.00 STATUS OF AGENT
4.01 The status of the Marketing Agent shall be that of an independent
contractor and the Marketing Agent shall have no authority to assume or
create any obligation whatsoever expressed or implied, in the name of the
Company, or to bind the Company in any manner whatsoever.
4.02 The Marketing Agent shall have no authority hereunder to enter into any
contract of sale or employment on behalf of the Company, or to endorse the
Company's checks, or to make allowances or adjustments on accounts for the
return of merchandise, except pursuant to written authorization of the
Company. The Company retains the right to review and approve of the legal
language in any Dealer, Sub-agent or Distribution appointment agreement
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entered into by the Marketing Agent that will or could oblige the Company
in any manner.
4.03 The Marketing Agent undertakes and agrees that it will not furnish to any
customer or prospective customer, any warranties, undertakings, or
guarantees other than the Company's standard written and authorized product
warranties, undertakings or guarantees that may intend to involve the
responsibility or liability of the Company unless authorized by the Company
in writing. In the event that the Marketing Agent does allow or furnish to
customers or prospective customers, any additional warranties, undertakings
or guarantees of any nature whatsoever, which might involve the
responsibility or liability of the Company, and which is not authorized by
the Company in writing, the Marketing Agent agrees to indemnify and save
the Company harmless from any claims, demands, damages, costs or losses
whatsoever arising out of or in any way connected with such warranties,
undertakings or guarantees.
5.00 EXPENSES
5.01 Except as hereinafter provided, all expenses in connection with
the Marketing Agent's performance of this Agreement and its activities
as Marketing Agent for the Company in accordance with the terms of
this Agreement, including, but not limited to travel, automobile,
salaries and supplies, shall be borne by the Marketing Agent and it
shall be solely responsible for the payment thereof.
At its discretion and in the interest of promoting sales the Company
may provide at its expense, technical information, access to marketing
materials and technical personal for purposes of training, product
launches, and trade shows.
6.00 ACCEPTANCE OF ORDERS
6.01 Orders received by the Marketing Agent for the purchase of
private label branded Products shall not bind the Company until
accepted by it. The Company reserves the sole and exclusive right to
accept or reject any order. In the interests of duty and corporate
growth the Company shall make every effort to complete the supplier
obligations and agrees not to unreasonably or capriciously reject any
orders obtained as a result of the efforts of the Marketing Agent.
This condition is in part to protect the Company against supply
shortages, acts of God, natural disasters and component supply
problems.
7.00 OBLIGATIONS OF THE COMPANY
7.01 During the currency of this Agreement the Company shall:
7.01.01 Permit the Marketing Agent to hold itself out as the
Marketing Agent, for the private label branded Product
during the term of this Agreement, and during any renewal
term
7.01.02 Permit the Marketing Agent to use all intellectual
property rights and know how associated with the Product in
the course of its performance of this Agreement;
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7.01.03 Provide technical materials, pricing information and
other related materials as may be reasonably required to
market the Product.
7.01.04 Provide to the Marketing Agent a commercially
acceptable industry standard one-year parts replacement
warranty for the Product.
8.00 PRICING AND TERMS
8.01 The Marketing Agent agrees to purchases of the Products as follows:
8.01.01 Initial order of two - CI 2500 Commercial Industrial
units
8.01.02 Five 40-ft. containers of WII- 4012 or an equivalent
cash value for any future units mutually agreed upon by the
Company and the Marketing Agent This product order shall be
placed immediately upon execution of this Agreement.
8.01.02 Annual minimum quantities of six CI-2500 Commercial
Industrial units and twelve 40-ft. containers of WII-4012
units, or equivalent value respective future units mutually
agreed upon by the Company and the Marketing Agent.
8.01.03 All purchases by the Marketing Agent will be on a
"FOB factory" basis.
8.01.04 The Marketing Agent's price for the CI-2500
Commercial Industrial units, the W II-4012 units and all
future product will be subject to price changes under the
terms of this contract, in USD and are currently as follows:
I) 2500 LPD units @ $ 82,500.00
II) WII-4012 @ $ 546.00 per unit
8.01.05 An Irrevocable Transferable Letter of Credit posted
with a financial Institution acceptable to the company must
accompany each order, notwithstanding the initial order
which the Company has agreed to allow 45-days from the
signing of this agreement for the Marketing Agent to post
the initial Irrevocable Transferable Letter of Credit in
order to facilitate the initial time required to properly
organize, capitalize, and structure the Marketing Agent's
company in anticipation of fulfilling the Marketing Agent's
obligations in this agreement and to allow the Company and
Marketing Agent the appropriate time to design and approve
the private label branded units.
8.01.06 The Company will facilitate orders immediately upon
receiving the
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transferable Irrevocable Letter of Credit, and shall make
its best effort to deliver all goods within 60 days of
acceptance of the said letter of Credit.
9.00 RIGHTS OF FIRST REFUSAL
9.01 The Company and the Marketing Agent mutually agree that the intent of this
Agreement is to grow each other's businesses and therefore grant a right of
first refusal to one another on the following basis;
9.02 The Marketing Agent agrees to disclose all products not manufactured by the
Company which the Marketing Agent may wish to manufacture under the
Marketing Agent's brand and give the Company a 90-day right of first
refusal to supply the Marketing Agent with equivalent products. The
Marketing Agent will disclose all costs, product specifications, product
forecasts, minimum opening and first year orders and all other related
materials from any competitive suppliers that the Marketing Agent is
considering in order to allow the Company a 90-day period to properly
evaluate and access whether the Company has the interest, ability or desire
to offer the Marketing Agent an equivalent product at a competitive price.
9.03 If the Company can offer the Marketing Agent an equivalent product at a
completive price and reasonable time and production schedule, the Marketing
Agent agrees to purchase this product from the Company. This provision does
not authorize the Marketing Agent to manufacture or to source manufacturing
using water-from-air harvesting technologies already developed by the
Company.
9.04 The Company agrees to give the Marketing Agent a 90-day right of first
refusal to be the private label brand of any future related product the
Company is considering manufacturing or marketing. The Company will supply
the Marketing Agent all costs, product specifications, minimum order
requirements and all other related materials in order to allow the
Marketing Agent a 90-day period to properly access whether the Marketing
Agent has the interest, ability or desire to fulfill the Company's
manufacturing and marketing goals for future related products. If the
Marketing Agent is able to meet the Company's minimum order requirements
and terms, the Company agrees to supply the Marketing Agent these future
related products under the Marketing Agent's Private Label Brand.
9.05 If either the Marketing Agent or the Company has offered the other a
written proposal outlining its desire to market future new related
products, and has reasonably given the other the product specifications,
minimum order requirements and other reasonable information to access the
opportunity, and has either received notice from the other declining the
right to participate in the opportunity or has allowed 90-days from the
time the written proposal has been offered and has not received
confirmation of the intent and ability of the other to participate, then
both the Marketing Agent and the Company mutually agree to grant the other
the ability to pursue the stated opportunity with whomever they choose and
be free of any further obligation to each other in regards to the specific
product(s) given the other in the original proposed outline.
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9.06 The Marketing Agent agrees to grant the Company a 90-day right of first
refusal to participate with the Marketing Agent in any offering or entry
into any form of agreement with a publicly trading company using or
promoting the branded product or products provided to companies in the
course of standard sales and marketing activities.
10.00 TERMINATION WITHOUT NOTICE
10.01 The Company may, in its sole discretion, terminate this Agreement without
notice or delay on the happening of any of the following events:
10.01.01 The Marketing Agent breaching any of the terms or
conditions of this agreement;
10.01.02 The Marketing Agent becoming insolvent or being
unable to pay its debts as they generally become due;
10.01.03 The Marketing Agent making an assignment for the
benefit of its creditors or being petitioned into
Bankruptcy;
10.01.04 A Receiver or Trustee in Bankruptcy of the
Marketing Agent being appointed; or
10.01.05 The Marketing Agent is not being the effective
cause of the sale of a minimum of 50% of the agreed annual
quantities by the end of the first 12 months. In the event
of termination for failure to reach the required sale
targets, the Marketing Agent shall continue to be obligated
under this Agreement as set out herein, for any sales or
dealership or sub-agent agreements entered into prior to the
date of termination.
11.00 GENERAL PROVISIONS
11.01 The Marketing Agent may, in its sole discretion, terminate this Agreement
without notice or delay on the happening of any of the following events:
(i) the Company breaching any of the terms or conditions of this Agreement;
(ii) the Company becoming insolvent or being unable to pay its debts as
they generally become due;
(iii) the Company making an assignment for the benefit of its creditors or
being petitioned into Bankruptcy;
(iv) a Receiver or Trustee in Bankruptcy of the Company being appointed; or
(v) the Company being unable to supply a minimum of 50% of the agreed
annual first year quantities to the Marketing Agent.
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11.02 INDEMNIFICATION. The Company agrees to indemnify and save the Marketing
Agent harmless from any claims, demands, damages, costs or losses whatsoever
arising out of or in any way connected with the intellectual property, patents
or manufacturing processes of The Company in supplying the Marketing Agent its
product. The Company agrees, at its sole cost, to defend all legal challenges
brought against the Marketing Agent connected with the intellectual property and
its right to market or manufacture the atmospheric water generators/purifiers
which the Company is supplying to the Marketing Agent. The Marketing Agent
agrees to cooperate fully with the company in furnishing the company with any
notices of any legal challenges whatsoever and in cooperating with the Company
fully in preparing its legal defense for any intellectual property related legal
challenges.
11.03 FORCE MAJEURE. In the Event of an inability or failure by the Company to
manufacture, supply or ship any of the Product by reason of any fire, explosion,
war, riot, strike, walk out, labor controversy, flood, shortage of water, power,
labor, or transportation facilities of necessary materials or supplies. Default
or failure of a carrier, breakdown in or the loss of production or anticipated
production from plant or equipment, act of God or public enemy, any law, act or
order of any court, board, government or other authority of competent
jurisdiction, or any other direct cause (whether or not of the same character as
the foregoing) beyond the reasonable control of the Company, then the Company
shall not be liable to the Marketing Agent during the period and to the extent
of such inability or failure. Deliveries omitted in whole or in part while such
inability remains in effect shall be cancelled.
11.04 GOVERNING LAW. This agreement shall be made and construed in accordance
with the laws of the State of Nevada, USA. All disputes arising from or in
connection with this contract shall if possible be settled amicably through
friendly negotiation. In case no settlement can be reached thereby the dispute
may, if either Party so desires, be resolved by arbitration, to be approved by
mutual consent; otherwise, the parties agree that any litigation concerning the
terms of this Agreement shall be resolved by litigation conducted in Xxxxx
County, Nevada, and both parties consent to such location as a convenient forum
for the resolution of disputes.
11.05 ENTIRE AGREEMENT. This Agreement together with all other documents
incorporated by reference shall constitute the entire agreement between the
Company and the Marketing Agent. With respect to all matters herein it is agreed
that its execution has not been induced by, nor does the Company or the
Marketing Agent rely upon or regard as material, any representations or writing
whatsoever not incorporated herein and made a part hereof and this agreement
shall not be amended, altered or qualified except by memorandum in writing
signed by the Company and the Marketing Agent. Any amendment, alteration or
qualification hereof shall be null and void and shall not be binding upon any
party who has not given its consent aforesaid.
11.06 TIME OF THE ESSENCE. Time shall be of the essence of this agreement and
every part hereof.
11.07 NOTICE. Any notice, demand or other communication by the terms hereof
required or permitted to be given by one party to another shall be given in
writing by registered mail, postage prepaid, addressed to such other party or
delivered to such other part as follows:
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COMPANY:
0000 XXXXX XXXXXX XXXXXXXXX. XXXXX 000
XXXXXXX XXXXX, XX 00000
MARKETING AGENT:
P204 ENTERPISES LTD. 000 XXXXXXX XXXXX, XXXXXXX XX,
XXX XX0 XXXXXX
Or such other address as may be given by any of the parties. Any notice
required or permitted under this Agreement shall be in writing and shall be
deemed to be given upon the date of delivery by commercial express mail service
(e.g. FedEx, UPS, etc.), next-business day delivery, postage prepaid and
addressed to the addressee at the last address recorded on the records of the
Company.
11.08 NON-WAIVER. No waiver by any party of any breach by any other party of
any of its covenants, obligations and agreements hereunder shall be a waiver of
any subsequent breach of any other covenant, obligation or agreement, nor shall
any forbearance to seek a remedy for any breach be a waiver of any rights and
remedies with respect to such or any subsequent breach.
11.09 NUMBER AND GENDER. All terms and words used in this agreement regardless
of the number and gender in which they are used shall be deemed and construed to
include any other number, singular or plural, and any other gender, masculine or
feminine or neuter as the context or sense of this agreement or any paragraph or
clause herein may require, the same as if such words would have been fully and
properly written in the appropriate number and gender.
(The remainder of this page is intentionally blank. The signature page
follows.)
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IN WITNESS WHEREOF THE PARTIES HERETO AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN
HAVE DULY EXECUTED THIS AGREEMENT.
SIGNED, SEALED AND DELIVERED
In the presence of: CIMBIX CORPORATION
Name Per
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Address Authorized Signatory
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Title
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SIGNED, SEALED AND DELIVERED
In the presence of: P 204 ENTERPRISES LTD.
Name Per
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Address Authorized Signatory
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Title
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