AMENDED AND RESTATED MASTER GLOBAL MARKETING AND DISTRIBUTION AGREEMENT
Exhibit 99.4
AMENDED AND RESTATED
This Amended and Restated Master Global Marketing and Distribution Agreement (together with the Exhibits, Schedules and Attachments hereto, if any, therein referred to as the “Agreement”) is made as of the 5th day of October, 2010, by and between Cellynx Group, Inc., a Nevada corporation and its affiliates and subsidiaries hereinafter referred to as (“CELLYNX”) and Dollardex Group Corp., a Panama corporation, hereinafter referred to as (“DOLLARDEX”). CELLYNX and DOLLARDEX are sometimes referred to herein as a “Party” or collectively as the “Parties.”
WHEREAS, on April 21, 2010, CELLYNX and DOLLARDEX entered into a Master Global Marketing and Distribution Agreement ,which amended the July Agreement, and which was subsequently amended as of June 14, 2010, and July 15, 2010 (collectively, the “Original MGMD Agreement”) .
ARTICLE I
For the purposes of this Agreement, the following terms shall, unless the context otherwise requires, have the meaning set forth below:
1.1 “Cost” shall mean the lowest purchase price that CELLYNX is able to negotiate for the manufacture of the product.
1.2 “Customer” shall mean any reseller (whether wholesaler or retailer) or end user of the Products in the Territory.
1.3 “Dealer(s)” shall mean distributors and agents of the Products, as appointed by DOLLARDEX and accepted by CELLYNX, in the Territory.
1.4 "Intellectual Property Rights" means the collective intellectual property rights now held or hereafter created or acquired by a party, whether arising under the laws of the United States or any other state, country or jurisdiction, for (i) all classes or types of patents, utility models, utility patents and design patents (including, without limitation, originals, divisions, continuations, continuations-in-part, extensions, renewals or reissues), patent applications and disclosures for these classes or types of patent rights in all countries of the world (collectively "Patent Rights"); (ii) all copyrights in both published works and unpublished works, software, all registrations and applications therefor and all moral rights in such works (collectively "Copyrights"); (iii) all trade names, logos, common law trademarks and service marks, trademark, and service xxxx registrations, related goodwill and applications therefore throughout the world identified on Exhibit A hereto (collectively, the “Marks”); (iv) all know-how, trade secrets, inventions, other confidential information, customer lists, software, technical data or specifications, testing methods, business or financial information, research and development activities, product and marketing plans, customer and supplies information, process technology, plans, drawings, and blue prints (collectively "Trade Secrets"); and (v) all rights (contractual or otherwise) to prevent disclosure or use of confidential information, and any other similar form of intellectual property or proprietary rights, statutory or otherwise, whether registrable or not and shall include applications thereto.
1.5 “Net Earnings” shall mean the total net earnings, as defined under U.S. generally accepted accounting principles, before taxes, of DOLLARDEX from sales, licensing and other income relating directly or indirectly to the Products in the Territory.
1.6 “Products” shall mean The Road Warrior, The @Home unit and any other product using the 5BARz™ Trademark including all related accessories, if any, and any and all future products of CELLYNX.
1.7 “Territory” or “Territories” shall mean all countries worldwide including the U.S.
ARTICLE I
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ARTICLE III
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(i) The potential Dealer has committed a felony or a substantially similar crime, whether or not in the Territory;
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(ii) The potential Dealer has been or is currently subject to regulatory investigation;
(iii) The potential Dealer has filed for bankruptcy or its equivalent in its Territory; or
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(iv) The potential Dealer does not have the financial ability to achieve the marketing objectives contemplated by the Parties.
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(i) Dollardex shall be fully responsible for obtaining all necessary certification and registration for the sale of the Products in the Territory. Dollardex will be solely responsible for maintaining all obligations required as part of any regulatory approvals, licenses, ISO certifications and CE Markings issued under CELLYNX’s name. All such efforts shall be undertaken at Dollardex’s cost. Dollardex shall also maintain in good standing all necessary regulatory approvals, licenses, ISO certifications and CE Markings issued under CELLYNX’s name.
(ii) DOLLARDEX shall be fully responsible for obtaining all necessary certification and registration for DOLLARDEX to sell Products. DOLLARDEX will be solely responsible for maintaining all obligations required as part of any regulatory approvals, licenses, ISO certifications and CE Markings issued under CELLYNX’s name. All such efforts shall be undertaken at DOLLARDEX’s cost. DOLLARDEX shall also maintain in good standing all necessary regulatory approvals, licenses, ISO certifications and CE Markings issued under CELLYNX’s name and will notify the issuing parties and/or governmental agencies in each country where such regulatory approvals, licenses, ISO certifications and CE Markings have been issued or are to be issued under CELLYNX’s name.
(iii) DOLLARDEX will be solely responsible for ensuring its activities in the promotion, marketing, sales and distribution of Products is conducted in compliance with all regulations applicable to DOLLARDEX in each country where such activities take place. CELLYNX commits to ensure that all regulatory approvals, licenses, ISO certifications and CE Markings of the Products are properly maintained or obtained, as applicable, such that there is no impairment of the good name and goodwill of CELLYNX.
(iv) Upon termination of this Agreement for any reason, DOLLARDEX, at the request of CELLYNX, will use commercially reasonable efforts to transfer any and all regulatory or governmental certifications or approvals pertaining to Products to CELLYNX. CELLYNX shall reimburse DOLLARDEX for all reasonable and actual costs incurred by DOLLARDEX related to any and all regulatory or governmental certifications or approvals pertaining to the Products, if obtaining such certifications or approvals had been approved by CELLYNX in writing prior to being obtained.
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ARTICLE IV
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ARTICLE V
5. 1
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(a)
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As consideration for the licenses granted by CELLYNX to DOLLARDEX herein, DOLLARDEX shall pay to CELLYNX a fee (the “Marketing and Distribution Fee”) amounting to 50% of DOLLARDEX;s Net Earnings (as defined above). The Marketing and Distribution Fee will be paid on a quarterly basis, payable in cash or immediately available funds and shall be due and payable not later than 45 days following the end of each calendar quarter of the year. CelLynx will have the right to audit the books and records of DOLLARDEX to insure that the DOLLARDEX’s obligations to make the Marketing and Distribution Fee are being met.
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(b)
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In the event that the Buyer fails to pay any Marketing and Distribution Fee when due, simple interest shall accrue on such unpaid Marketing and Distribution Fee at a rate of six percent (6%) (the “Default Interest”), and shall continue to accrue until such unpaid Marketing and Distribution Fee, plus any accrued interest, is paid in full to the Seller.
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ARTICLE VI
(a) the involuntary filing by a third party or voluntary filing by DOLLARDEX of a petition in bankruptcy or insolvency;
(b) any adjudication that DOLLARDEX is bankrupt or insolvent;
(c) the filing by DOLLARDEX of any legal action or document seeking reorganization, readjustment or arrangement of DOLLARDEX’S business under any law relating to bankruptcy or insolvency;
(d) the appointment of a receiver for all or substantially all of the property of DOLLARDEX;
(e) the making by DOLLARDEX of any assignment for the benefit of creditors;
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(f) the institution of any proceedings for the liquidation or winding up of DOLLARDEX’S business or for the termination of its corporate charter; or
(g) the attachment by or assignment to a third party of all or substantially all of the assets of DOLLARDEX.
ARTICLE VIII
CONFIDENTIALITY.
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ARTICLE VIII
(a) It is an entity duly organized, validly existing and in good standing in the jurisdiction of its formation, and has full authority to enter into this Agreement and to perform its obligations hereunder and to make all authorizations and representations specified hereunder and all necessary approvals of any board of directors, shareholders, partners, and lenders have been obtained;
(b) It shall not permit any person or entity to use or gain access to the Technology except as expressly authorized herein, and shall protect against unauthorized usage of or access thereto and shall immediately notify CELLYNX in writing of any such unauthorized access or use;
(c) It shall take all reasonable steps to ensure that all of its dealers, customers, employees, agents and independent contractors comply with this Agreement and do not use the Products or Technology or cause the Products or Technology to be used in a manner exceeding the License granted to the DOLLARDEX in this Agreement or in a manner that was not intended by CELLYNX;
(d) It shall be solely responsible for any warranties provided by it to its dealer, customers, employees, agents or independent contractors with respect to the Products or use thereof;
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(e) It shall not and shall not allow its dealers, customers, employees, agents or independent contractors to use the Products and Technology in any manner that: (1) infringes upon or violates any patent, copyright, trade secret, trademark, or other Intellectual Property Right of CELLYNX or any third part; (2) violates any contractual rights of CELLYNX or any third party (3) constitutes a defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing, malicious, vulgar, harmful or otherwise objectionable; or (4) violates any applicable international, federal, state or local law, rule, legislation, regulation or ordinance; and
(f) It shall not and shall not allow its dealers, customers, employees, agents or independent contractors to use the Products and Technology for any illegal, obscene, offensive or immoral purpose.
ARTICLE IX
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ARTICLE X
ARTICLE XI
11.2 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles. The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Los Angeles County, State of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
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If to CELLYNX:
CELLYNX, INC.
Attention: Xxxxxx X. Xxxxxxx
Chairman & Chief Executive Officer
00000 Xxxxx, Xx. 000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxx@xxxxxxxxx.xxx
With Copy To:
DURHAM XXXXX & XXXXXXX, P.C.
000 XXXX XXXXXXXX,, XXXXX 000
XXXX XXXX XXXX, XXXX 000000
ATTN: Xxxxxxx X. Xxxxx, Esq.
Telephone: 000 000 0000
Facsimile: 801 415 3500
Email: XXXXXX@XXXXXX.XXX
If to DOLLARDEX :
DOLLARDEX GROUP, CORP.
Attention: Xxxxxx X. Xxxxx
President and Chief Executive Officer
0000 Xxxxxxxxx Xxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxxxxxx0@xxxxxxx.xxx
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[SIGNATURE PAGE FOLLOWS.]
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By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Chairman & Chief Executive Officer
DOLLARDEX GROUP CORP.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
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EXHIBIT A
MARKS:
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5BARz™
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Turning Weak Spots into Sweet Spots™
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