Exhibit 10.1A
DISTRIBUTOR AGREEMENT
THIS AGREEMENT is made this 29th day of March, 1999, by and between GINSITE
MATERIALS, INC, with its principal place of business located at 0000 XXXX
XXXXXXX XXXXXXXXX, XXXXXXXXXX, XXXXXXX 00000 (the"Company")and MJ INNOVATIONS,
XxxxX. Xxxxxx/Xxxxxxx Xxxxxxxx, "Distributor", 0000 Xxxxxxxx Xxxxx, Xxxxx #0000
Xxxxx, Xxxxxxx 00000, USA/ 000 Xxx Xxxxxxx, Xxxxxxxx, Xxxxxx JOT1Y0
NOW, THEREFORE, for the sum of TEN DOLLARS ($10.00) and other good and valuable
consideration, the parties hereto agree as follows:
ARTICLE I
APPOINTMENT OF DISTRIBUTORSHIP
1. Distribution Right. The Company hereby appoints and grants Distributor
the non-exclusive and assignable right to sell that certain product of the
Company known as GINSITE (hereinafter referred to as "GINSITE" or the "Product")
listed in the then current "Price List" (Exhibit "A" attached hereto). The
distribution right shall be limited to customers who have places of business in,
and will initially use the Company's products in the geographic area set forth
in Exhibit "B" attached hereto.
2. Prices. All prices stated are FOB the Company's offices in Plantation,
Florida. Prices do not include transportation costs which shall be borne by
Distributor. Prices do not include federal, state or local taxes applicable to
the products sold under this Agreement.
3. Terms. Unless otherwise specified in writing, terms are NET cash upon
delivery, except where satisfactory credit is established in which case terms
are:
a. Fifty percent (50%) of total invoice with Order.
b. Twenty-five percent (25%) of total invoice upon delivery by the
Company.
c. The balance of any invoice shall be due within thirty (30)days
from delivery by the Company.
The Company reserves the right to revoke any credit extended at the Company's
sole discretion. Invoices not paid within thirty (30) days of the invoice date
will have one and one-half percent (1- 1/2%) per month finance charge assessed
against the unpaid balance from the date of invoice until the date of payment.
4. Title to GINSITE. The Company hereby reserves a purchase money security
interest in each unit of GINSITE sold or to be sold under this Agreement and in
the proceeds thereof, if Distributor shall have sold a unit(s) to another party
prior to Distributor paying Company the purchase price for such Unit as set
forth herein, in the amount of such unit's purchase price. These interests will
be satisfied by payment in full. A copy of this Agreement may be filed with the
appropriate authorities at any time after the signature by the Company as a
financing statement in order to perfect the Company's security interest. On the
request of the Company, Distributor shall execute financing statement(s) and
other instruments the Company shall desire to perfect a security xxxxxxxx0 in
the GINSITE for its purchase price. Title to the GINSITE shall pass to
Distributor upon receipt by the Company of payment in full for all amounts due
for such units of GINSITE
5. Competitive Products. Distributor agrees not to represent or sell other
products which are deemed to be competitive with GINSITE unless agreed to by the
Company by written notice. Said competitive products include, but are not
limited to; stucco products, waterproofing products, cement, concrete blocks,
sealers or similar products.
ARTICLE II
MARKETING AND SUPPORT
1. Sales. Distributor shall use its best efforts to promote the sale and
distribution of GINSITE.
2. Advertising. Company shall assist the Distributor on all advertising,
sales promotions, and public relations.
3. Training. Company shall furnish training of Distributor's sales and
technical representatives at various times and locations as shall be designated
for this purpose by Company.
ARTICLE III
DELIVERY
1. Purchase Orders. Distributor shall order GINSITE by written notice to
Company. Each order shall specify the number of units (as identified by Company
model number or other designations indicated in the Price List) to be shipped,
the intended use of the Product including any optional requirements, the desired
method of shipment and the installation site.
2. Product Acceptance. The sole criterion for acceptance of GINSITE by
Distributor shall be the successful receipt of the GINSITE by Distributor or its
purchaser. The Company acknowledges that said GINSITE will conform to all
specifications for GINSITE using Company's standard test procedures and
diagnostic test programs applicable to the product and application involved. The
Company shall not be responsible for improper preparation, application, mixing,
misuse or abuse or other defects caused as a direct/indirect result of improper
use.
3. Shipment. All shipments of GINSITE shall be made FOB Company's plant and
liability for loss or damage in transit, or thereafter, shall pass to
Distributor upon Company's delivery of GINSITE to a common carrier for shipment.
Distributor shall bear all costs of transportation and insurance and will
promptly reimburse Company if Company prepays or otherwise pays for such
expenses. Company shall not be in default by reason of any failure in its
performance under this Agreement.
4. Delay. Distributor may delay for a period of thirty (30) days upon
giving the Company written notice at least fifteen (15) days prior to the
scheduled delivery date. In the event distributor delays delivery for more than
thirty (30) days with notification as set forth above, or for a period of more
than five (5) days written notice, Distributor shall pay to Company, as a
service charge, an amount equal to 1/360th of twenty-five percent (25%) of the
Purchase Price for each day of such delay to be computed from the first day of
such delay through the termination of such delay.
5. Force Majeure. No party hereto shall be liable for delay or failure to
perform any obligations hereunder (other than the payment of money) if such
delay or failure arises out of causes beyond its reasonable control and without
its fault or negligence, including, but not limited to, labor disputes and
strikes, wars, riots, insurrection, piracy, and civil commotion, federal, state
or municipal action, statue, ordinance, regulations, rule or order, fire,
earthquake, floods or other unusually severe weather, accidents, nuclear
radiation, embargos, epidemics, shortage of power or any act of God. Any party
seeking excuse for delay or failure to perform on the basis of this provision
shall promptly notify the other party hereto upon learning of any event which
may result in any delay or failure to perform. In addition, the affected party
shall make every effort to eliminate and/or correct the effect of such condition
or event as completely and rapidly as is reasonably possible. In such case, the
time of delivery or performance shall be deferred until force majeure event as
provided in this paragraph.
6. Cancellation. Distributor may, within five (5) days from making an order
cancel any or all GINSITE on order upon giving timely written notice.
ARTICLE IV
PROPRIETARY RIGHTS
1. Use of Company Name. Company expressly prohibits any direct or indirect
use, or reference to GINSITE, or other employment of its name, trademarks, or
trade name exclusively licensed to Company, except as specified in this
Agreement or as expressly authorized by Company in writing. All advertising and
other promotional material will be submitted to Company at least two weeks in
advance and will only be used if Company consents thereto, which consent shall
not be unreasonably withheld.
Authorized legend shall be the following:
AUTHORIZED DISTRIBUTOR OF: GINSITE
2. If the authorized legend is used on any stationery, invoices, promotion
material or otherwise by Distributor, Distributor will, on termination of this
Agreement, or upon request of Company, discontinue the use of such legend on any
stationery, invoices, promotion material or otherwise and thereafter will not
use, either directly or indirectly in connection with its business, such legend
or any other names, titles of expressions so nearly resembling the same as would
likely lead to confusion or uncertainty, or to deceive the public.
3. Drawings and Data. The Company supplies all necessary data for the
proper application, and maintenance of GINSITE. Portions of this data are
proprietary in nature and will be so marked. The Distributor agrees to abide by
the terms of such markings and to be liable for all loss or damage incurred by
the Company as a result of the improper or unauthorized use of such data.
4. Title to Products and Documentation Package. Distributor acknowledges
that the GINSITE and any documentation are and shall remain the property of
Company, and that the products are being made available to Distributor in
confidence and solely on the basis of its confidential relationship to Company,
Distributor agrees not to print, copy, provide or otherwise make available, in
whole or in part, any portion of an original or modified GINSITE and/or
Documentation Package or related materials.
ARTICLE V
WARRANTY
1. GINSITE Warranty. Company warrants that Distributor shall acquire
GINSITE purchased hereunder free and clear of all liens and encumbrances except
for Company's purchase money security interest defined in Article I, 4. above.
Company further warrants all GINSITE to be free from defects in material or
workmanship under normal and intended use and service for a period of One (1)
year from the date of delivery as outlined in Exhibit C.
ARTICLE VI
DURATION OF AGREEMENT
1. Term. The term of this Agreement shall be for 5 YEARS(S) from the date
hereof, unless sooner terminated. The Company, at its sole option, shall have a
right to renew this agreement, under the same terms and conditions, for
consecutive additional 5 YEAR terms, upon thirty (30) days written notice to
Distributor, prior to the expiration each of the then current term. Termination
shall not relieve either party of obligations incurred prior thereto.
2. Termination. This Agreement may be terminated only:
(a) By either party for substantial breach of any material provision of
this Agreement by the other, provided due notice has been given to the other of
the alleged breach and such other party has not cured the breach within thirty
(30) days thereof; or
(b) By the Company if: there is an unacceptable change in the control or
management of the Distributor; if the Distributor ceases to function as a going
concern or makes an assignment for the benefit of creditors; if a petition in
bankruptcy is filed by or against the Distributor, resulting in an adjudication
of bankruptcy; or, if the Distributor fails to pay its debts as they become due
and provided due notice has been given by the Company to the Distributor and the
Distributor has not cured such breach within thirty (30) days thereof; or
(c) Upon termination of this Agreement all further rights and obligations
of the parties shall cease, except that Distributor shall not be relieved of
(I) its obligation to pay any monies due, or to become due, as of or
after the date of termination, and
(II) any other obligation set forth in this Agreement which is to take
effect after the date of termination. The Distributor may only
sell unsold inventory of GINSITE to either the Company or another
authorized Distributor.
(d) Failure of the Distributor to meet or exceed the Minimum Requirements
set forth in Exhibit A.
ARTICLE VII
NOTICES
1. Notice or Communication. Any notice or communication required or
permitted hereunder (other than Administrative Notice) shall be in writing and
shall be sent by certified mail, return receipt requested, postage prepaid and
addressed to the addresses set forth below or to such changed address as any
party entitled to notice shall have communicated in writing to the other party.
Notices and communications to Company shall be sent to:
GINSITE MATERIALS, INC.
0000 XXXX XXXXXXX XXXX.
XXXXXXXXXX, XX 00000
Notices or communications to Distributor shall be sent to address shown on first
page of this Agreement. Any notices or communications to either party hereunder
shall be deemed to have been given when deposited in the mail, addressed to the
then current address of such party.
Date of Effectiveness. Any such notice or communication so mailed shall be
deemed delivered and effective seventy-two (72) hours after mailing thereof in
the United States.
ARTICLE VIII
GENERAL PROVISIONS
1. Relationship of Parties. The relationship between the parties
established by this Agreement shall be solely that of vendor and vendee and all
rights and powers not expressly granted to the Distributor are expressly
reserved to the Company.
2. Independence of Parties. Nothing contained in this Agreement shall be
construed to make the Distributor the agent for the Company for any purpose, and
neither party hereto shall have any right whatsoever to incur any liabilities or
obligations on behalf or binding upon the other party. The Distributor
specifically agrees that it shall have no power or authority to represent the
Company in any manner; that it will solicit orders for products as an
independent contractor in accordance with the terms of this Agreement; and that
it will not at any time represent the Company in any manner; that it will
solicit orders for products as an independent contractor in accordance with the
terms of this Agreement; and that it will not at any time represent orally or in
writing to any person or corporation or other business entity that it has any
right, power or authority not expressly granted by this Agreement.
3. Indemnity. The Distributor agrees to hold the Company free and harmless
from any and all claims, damages, and expenses of every kind or nature
whatsoever (a) arising from acts of the Distributor; (b) as a direct or indirect
consequence of termination of this Agreement in accordance with its terms; or
(c) arising from acts of third parties in relation to products sold to the
Distributor under this Agreement, including, but not limited to execution of
liens and security interests by third parties with respect to any such products.
4. Assignment. This Agreement constitutes a personal contract and
Distributor shall not transfer or assign same or any part thereof without the
advance written consent of Company.
5. Entire Agreement. The entire Agreement between the Company and the
Distributor covering the GINSITE is set forth herein and any amendment or
modification shall be in writing and shall be executed by duly authorized
representatives in the same manner as this Agreement. The provisions of this
Agreement are severable, and if any one or more such provisions are determined
to be illegal or otherwise unenforceable, in whole or in part, under the laws of
any jurisdiction, the remaining provisions or portions hereof shall,
nevertheless, be binding on and enforceable by and between the parties hereto.
6. Applicable Law. This Agreement shall be governed by the laws of the
State of FLORIDA and is accepted by Company at its Corporate Office in
Plantation, Florida.
7. Separate Provisions. If any provision of this Agreement shall be held to
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers as of the date and year indicated above.
GINSITE MATERIALS, INC. (COMPANY)
By:_/s/ Xxxxxx Xxxxxxxx, Pres. WITNESS:_________________________
(Authorized Officer)
(DISTRIBUTOR)
By:_/s/ Xxxx Xxxx Medici WITNESS:_________________________
(Authorized Officer)
State of Florida)
County of Dade)
Sworn to and subscribed before me this 31 day of March of the year 1999, by Xx.
Xxxx-Xxxx Xxxxxx, who produced ID U.S. Passport # 000000000.
Notary Public - State of Florida
/s/ Xxxxxxx Xxxxx Swing My Commission CC662995 Expires July 13, 2001
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EXHIBIT B
DESCRIPTION OF THE TERRITORY
The following state, country, territory or counties shall constitute the
Territory:
Quebec State, Canada; Mexico; China
[Describe Geographic Areas]
