Exhibit 10.4
FORM OF AGREEMENT
SALES AGENCY AGREEMENT
THIS SALES AGENCY AGREEMENT ("Agreement") is made by and between China Direct
Trading Corporation, a Florida corporation, with an office address at 00000
Xxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, ("Agent"), and Xxxxxx'x Mill
Specialties, Inc., a _Arizona corporation with its principal executive offices
located at 0000 Xxxx Xxxxxxxx Xxxxx #0, ("Client"). Agent and Client may
hereinafter also be referred to individually as a "party" and collectively as
the "parties". The effective date of this Agreement shall be July 30, 2005.
RECITAL: Subject to the terms and conditions of this Agreement, Client wishes to
engage Agent as an independent contractor and the Agent wishes to be engaged as
an independent contractor to: market and sell Client's promotional, gift and
souvenir products as more fully described in Exhibit A hereto, which Exhibit A
is hereby incorporated herein by reference. The Client promotional, gift and
souvenir products shall hereinafter be referred to as the "Products"). Exhibit A
hereto shall be amended from time to time by the parties to reflect changes in
the Products.
NOW, in consideration of good and valuable consideration, the sufficiency of
which is hereby acknowledged by the parties, the parties agree as follows:
Section 1. Recitals. The above preamble, recitals, definitions and
exhibit are hereby made a part of this Agreement.
Section 2. Agency. The Client hereby engages the Agent and the Agent
hereby agrees to be engaged by the Client to perform the following services as
an independent contractor of the Client: market, promote and sell the Products
from time to time in the normal course of the Agent promoting its own products
and during the term hereof. Nothing contained herein shall obligate the Agent to
perform any extraordinary or non-customary marketing or sales efforts for the
Products, or to invest any specific amount or level of the Agent's money or
resources or time in marketing and selling the Products under this Agreement.
Section 3. Commissions. The Agent shall be paid a commission of 10 % of
the total sale of the product to distributors and 15% to end users. Client shall
provide the Agent a written monthly accounting of all sales of Products in that
month, which accounting shall be sent to the Client by the Agent within 15 days
after the last day of the month in question. Commissions are due with the sales
report. Commissions will be paid on all re-orders and upon the date of
termination of this contract commissions will continue to be paid for two years
on all accounts initiated by the agent, including orders from tradeshows
attended by agent.
Section 4. Confidentiality. (a) The parties have disclosed and/or will
disclose to each other certain trade secrets and proprietary business
information (including, without limitation, business and marketing plans;
financial, marketing and product information; marketing and sales leads and
sources; and business contacts) which are used in conducting the a party's
business, gives a party some competitive business advantage, or the disclosure
of which could be detrimental to the interests of the disclosing party
("Confidential Information"). When such information is disclosed, the parties
are disclosing their respective Confidential Information to each other for the
sole purpose of facilitating the sale, marketing and promotion of Products
hereunder. Each party agrees to treat as strictly confidential any and all
Confidential Information obtained from the disclosing party and to that end each
party further agrees: (a) not to display, disclose, disseminate, discuss or
reveal to any third party or to use the Confidential Information or any portion
thereof of a disclosing party, except in accordance with this Agreement or under
an express written consent from the disclosing party; and (b) to safeguard and
segregate the Confidential Information obtained under this Agreement from its
own Confidential Information; and (c) to use its best efforts to ensure that the
Confidential Information is disclosed only to the receiving parties' officers,
employees, and agents who have a need to know the Confidential Information; and
(d) not to make any copies of the Confidential Information except upon the
written authorization of the other party and not to remove any copy or sample of
such information from their premises; and (e) not to unfairly, in bad faith,
intentionally or in violation of any legal or contractual obligation to use the
disclosing party Confidential Information in the party's own business and in a
manner that unfairly, adversely impacts on the other party.
(b) Affiliates' Conduct. The parties shall be responsible for
the acts of their officers, employees, subcontractors or agents to whom
Confidential Information or any portion thereof has been disclosed, and the
parties further guarantee the full and substantial, good faith performance by
their officers, employees, subcontractors and agents of the terms and conditions
of this Agreement.
(c) Excluded Information. The parties agree that the
obligations under this Agreement shall not be applicable to any information
disclosed by either party which (a) is already publicly available or in the
public domain and such availability is not the result of any breach of any legal
or contractual obligation by a party or third party; or (b) is already in the
possession of the receiving party from sources other than the disclosing party
and such possession is not the result of any breach of any legal or contractual
obligation of the disclosing party or by such sources; or (c) such information
is disclosed with the prior, informed and written consent of the disclosing
party.
Section 5. Competition. The parties agree that they are engaged in the
same business or industry in the same markets and are competitors. Nothing
contained herein constitutes an agreement by the parties to avoid competing
against one another in the sale of each parties respective products in the
normal course of business in any geographic market or to cooperatively set
pricing for such products or to restrict the sale of any kind of product by one
party in the other party's geographical markets. The intent of the parties
herein is that one party may not in breach of Section 4 above use the other
party's Confidential Information to gain a competitive advantage or interfere in
the other party's existing business, financial, customer, vendor, agency or
other commercial relationship.
Section 6. No Common Venture. Nothing contained in this Agreement shall
be deemed to create any relationship between the parties except the independent
contractor relationship specified herein and the parties understand and agree
that no license or other right or title is granted under or by this Agreement to
a party in the other party's business, enterprises, revenues, business
opportunities, operating assets, intellectual property rights or any other
tangible or intangible assets or properties, or in any aspect of the
Confidential Information of the disclosing party.
Section 7. No Obligation to enter Other Agreements. Nothing in this
Agreement shall require a party to execute agreements for or to enter into any
transactions with the other party.
Section 8. Entire Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties, their successors and assigns. If any
provision of this Agreement or its application is held to be invalid, illegal,
or unenforceable in any respect, the validity, legality, or enforceability of
any of the other provisions shall not in anyway be affected or impaired. The
parties recognize that violation of any provision of this Agreement w(1)ill
cause irreparable injury to the disclosing party, and agree, therefore, that
each party shall have the right to obtain from a court of competent jurisdiction
an injunction to prohibit the receiving party from violating the terms of this
Agreement.
Section 9. Exclusive Jurisdiction. The parties agree that any and all
controversies or disputes or claim or causes of action under, based on or
concerning this Agreement shall be resolved solely and exclusively in the
federal, state or local courts for Broward County, Florida. The parties further
agree that this Agreement was made in Broward County, Florida and that Broward
County, Florida is an appropriate and convenient venue for the resolution of any
such controversies or disputes or claim or causes of action. Neither party shall
seek to remove any legal proceeding from the courts for Broward County, Florida
on the ground of FORUM NON-CONVIENS or any similar grounds for removal.
Section 10. Facsimile Signature. The parties agree that an executed
facsimile of this Agreement will be binding on the parties and shall have the
same force and effect as an original copy.
Section 11. Non-Circumvention. Neither party shall seek to unfairly or
in bad faith or in violation of any provision of this Agreement to: (a) deprive
the other party of any benefit from any bona fide business opportunity of the
other party; nor (b) interfere in the other party's pre-effective-date business,
financial or contractual relationships with any third party.
Section 12. Entire Agreement. This Agreement represents the entire
agreement of the parties on the subject matters of this Agreement and this
Agreement may only be amended or modified by a writing signed by all parties.
Section 13. Counterparts. This Agreement shall be signed in multiple
counterparts, each one shall be the same agreement and instrument.
Section 14. Survival. If any provision of this Agreement is determined
to be invalid or unenforceable by a court, the remaining valid provisions shall
constitute the entire agreement of the parties without any action by or further
notice to the parties.
IN WITNESS WHEREOF, the parties or their duly authorized representatives have
executed this Agreement on the date or dates written below, the date upon which
the last party signs being the effective date of this Agreement.
CHINA DIRECT TRADING CORPORATION, A FLORIDA CORPORATION
BY: ______________________________________
NAME: ________________________________
TITLE: __________________________
XXXXXX'X MILL SPECIALITIES, INC., A _______________- CORPORATION
BY: _______________________________________
NAME: __________________________________
TITLE: __________________________
