EXCLUSIVE MARKETING AGREEMENT
This EXCLUSIVE MARKETING AGREEMENT (the "Agreement") is made and
entered into as of November 17, 2004, by and between POWER2SHIP, INC., a
corporation organized under the laws of Nevada ("Power2Ship"), and INTERNATIONAL
LOGISTICS SOLUTIONS, INC., a Florida corporation ("ILS").
Preliminary Statements
WHEREAS, Power2Ship has developed software and services for the
transportation industry, as more fully described on Exhibit "A" attached hereto
(the "Applications"); and
WHEREAS, ILS and its principals have significant experience in
worldwide marketing; and
WHEREAS, Power2Ship desires to engage ILS as Power2Ship's exclusive
representative to market the Applications to prospective customers world-wide,
except for the United States, its territories and possessions, Canada and Brazil
(the "Territory") on the terms and conditions set forth in this Agreement and
ILS agrees to accept such engagement on those terms and conditions.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained as well as for other good and valuable consideration, the
parties do hereby agree to the following:
Terms and Conditions
1. Appointment as Exclusive Representative; Acceptance. Power2Ship hereby
appoints ILS as its exclusive representative in the Territory to market the
Applications to prospective customers in the Territory and ILS accepts such
engagement on the terms and conditions of this Agreement.
2. Obligations of ILS. ILS shall:
(a) use commercially reasonable efforts to market the Applications to
prospective customers in the Territory. ILS shall not have the authority to
bind Power2Ship with respect to any agreement with a customer (a "Customer
Agreement"). The terms of any Customer Agreement and whether or not to
enter into an Customer Agreement will be in the sole and absolute
discretion of Power2Ship;
(b) spend as much time as Power2Ship deems necessary to understand the
functionality of the Applications, the market for the Applications and any
subsequent improvements and enhancements to the Applications. ILS shall
provide Power2Ship with a monthly written report listing all contacts made
on behalf of Power2Ship pursuant to this Agreement; and
(c) comply with all domestic and foreign laws and regulations in performing its
obligations hereunder.
3. Obligations of Power2Ship. Power2Ship shall:
(a) train ILS' personnel in the functionality of and market for the
Applications and notify ILS and provide additional training if necessary
with respect to any subsequent improvements and enhancements to the
Applications;
(b) provide ILS with a commercially reasonable quantity of Power2Ship's then
currently available brochures, CDs and marketing materials for the
Applications. In addition, Power2Ship shall reimburse ILS for the cost of
translating these materials into foreign languages, if necessary, subject
to the pre-approval requirement set forth in subparagraph 4(d) below;
(c) prepare and/or participate in presentations and/or remote demonstrations of
the Applications to prospective customers, upon reasonable advance notice;
and
(d) attend meetings in the United States with prospective customers, upon
reasonable advance notice.
4. Compensation of ILS. Power2Ship shall pay to ILS an amount equal to:
(a) fifteen (15%) percent of "net cash flow" generated during each calendar
year during the Term of this Agreement and for twelve (12) months
thereafter (the "Payment Period") from Customer Agreements resulting from
direct introductions to Power2Ship by ILS under this Agreement ("Qualified
Customers"); plus
(b) twenty (20%) percent of "net cash flow" in excess of $10,000,000 and up to
$15,000,000 generated during each calendar year of the Payment Period from
Qualified Customers; plus
(c) twenty-five (25%) percent of "net cash flow" in excess of $15,000,000
generated during each calendar year of the Payment Period from Qualified
Customers; and
(d) reimbursement of all out-of-pocket expenses incurred by ILS in the
performance of its duties hereunder, provided that such expenses shall be
pre-approved by Power2Ship and reimbursement therefor shall be requested by
ILS on the forms and with the supporting documentation required by
Power2Ship for reimbursement of such expenses.
As used herein, the term "net cash flow" shall mean gross revenues
actually received by Power2Ship from Qualified Customers less all direct costs
incurred by Power2Ship to provide the Applications to a Qualified Customers and
all out-of-pocket expenses previously reimbursed to ILS. In the event net cash
flow is negative during any calendar month (a "net cash flow deficit"), 100% of
net cash flow generated during subsequent months shall be applied to such net
cash flow deficit until it is erased, prior to net cash flow"\ being deemed to
be available for purposes of determining compensation payable to ILS hereunder.
Amounts earned by ILS pursuant to subparagraphs (a) through (c),
together with the reimbursement of any expenses pursuant to subparagraph (d)
shall be paid by Power2Ship on the 15th of each calendar month based on net cash
flow in the preceding calendar month. Each payment hereunder shall be
accompanied by a report showing the calculation of net cash flow and the payment
to ILS. Any report and the information therein not contested by ILS within
thirty (30) days of issuance shall be deemed accepted by ILS.
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5. Term. This Agreement shall commence on the date hereof and continue until May
31, 2005 (the "Initial Term"). If during the Initial Term, ILS has generated at
least one prospective customer that has entered into or is negotiating Customer
Agreement with Power2Ship, the parties shall negotiate in good faith for a
renewal term. As used herein, "Term" means the Initial Term and any renewal
term.
6. Termination of Agreement. This Agreement may be terminated:
(i) by Power2Ship, upon a breach of any provision of this Agreement by ILS
which is not cured within thirty (30) days after written notice of same;
(ii) by ILS, upon a breach of any provision of this Agreement by Power2Ship,
which is not cured within thirty (30) days after written notice of same; or
(iii)by either party, upon the bankruptcy, insolvency, receivership or
assignment for the benefit of creditors of all or part of the assets of the
other party.
7. Rights Upon Termination. The obligations of Power2Ship under Paragraph 4 of
this Agreement shall survive the termination or expiration of this Agreement.
8. Independent Contractor. The parties agree that ILS is an independent
contractor and that nothing herein shall constitute a partnership or joint
venture between Power2Ship and ILS.
9. Waiver; Severability. Any failure on the part of a party to insist upon the
performance of this Agreement or any part hereof shall not constitute a waiver
of any right under this Agreement. No waiver of any provision of this Agreement
shall be effective unless in writing and executed by the party waiving the
right.
10. Further Assurances. Each party shall perform all acts, do all things,
execute and deliver all papers, certificates and instruments, to effectuate the
intent of this Agreement.
11. Indemnification. ILS agrees to indemnify Power2Ship, its officers,
directors, shareholders, agents, and employees, against all claims, damages,
losses and expenses, including reasonable attorneys' fees and costs, arising out
of the performance of ILS' obligations hereunder that have been caused, in whole
or in part, by ILS' negligent acts or omissions, or that of anyone employed by
ILS for whose acts it may be liable.
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12. Miscellaneous.
(a) Notice. Any notice required or permitted hereunder shall be sufficiently
given if personally delivered, if sent by registered or certified mail,
postage prepaid, return receipt requested, or by commercial overnight
courier (e.g., Federal Express, DHL, Sonic, etc.), confirmation of delivery
requested, or by facsimile transmission with electronic confirmation of
receipt, to the addresses listed below:
If to Power2Ship: 000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to ILS: 0000 Xxxxxx Xxxxxxx Xxxxx
Xxxxx Xxxxx, Xx 00000
Attn: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without regard to its
principles of conflict of laws. The parties agree that any dispute or
proceeding arising out of or relative to this Agreement or their
relationship shall be settled by binding arbitration in Boca Raton, Florida
under the rules of the American Arbitration Association then in effect.
(c) Amendment. The provisions of this Agreement may be waived, altered, amended
or repealed, in whole or in part, pursuant only to a writing signed by all
of the parties hereto.
(d) Assignment. This Agreement shall not be assigned or transferred by either
party without the express written consent of the other party to such an
assignment or transfer. For purposes of this Agreement, a change in
majority ownership of a party, the sale of substantially all of a party's
assets or the merger of a party with a third party shall be deemed to
constitute an assignment. This Agreement shall innure to the benefit of,
and be binding upon, the parties and their respective successors and
permitted assigns.
(e) Entire Agreement. This Agreement constitutes the entire agreement between
the parties concerning the subject matter hereof and supersedes all
previous, verbal or written, agreements and understandings between the
parties regarding the subject matter of this Agreement.
(f) Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original and all of which together
shall constitute one and the same instrument.
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(g) Attorneys' Fees. If any arbitration is brought for the enforcement of this
Agreement or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party or parties shall be or in
enforcing arbitration award entitled to recover reasonable attorneys' fees
and other costs incurred in that arbitration, in addition to any other
relief available at law or in equity.
IN WITNESS WHEREOF, Power2Ship and ILS have executed this Agreement as
of the date set forth below.
POWER2SHIP, INC.
By: /s/Xxxxxxx Xxxxx
------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Executive Officer
INTERNATIONAL LOGISTICS SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: President
