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EXHIBIT 10.4
DISTRIBUTORSHIP AGREEMENT
AGREEMENT made this 6th day of January, 2000, by and between Evergreen
Xxxxxxx.xxx, Inc., a Colorado corporation, hereinafter called "Evergreen" and
Fungi, Inc. dba Bingo West of Colorado Springs, a Colorado company, and Xxx
Xxxxxx, individually, hereinafter called the "Distributor".
WHEREAS Evergreen represents that it is the Master Distributor in Colorado for
Infinity Group, Inc.'s Tab Force(R) validation units and pull-tabs, and that it
has the right to sell and to promote the sale of Tab Force(TM) products in the
area, and
WHEREAS the Distributor desires to sell and to promote the sale of Tab Force(TM)
products, which, for the purposes of this agreement, will be referred to as
Evergreen's products,
IT IS THEREFORE AGREED:
1. RIGHT TO MARKET. Evergreen hereby grants to the Distributor the
nontransferable right to market and sell at retail the products and all its
future products bearing the "Tab Force(TM)" trademark in the territory
assigned by this Agreement.
2. TERRITORY. For the purposes of this Agreement, the territory of the
Distributor shall be the see exhibit A.
3. COVENANTS OF EVERGREEN TAB FORCE(TM). Evergreen covenants as follows:
a. If the Distributor shall not be in default under the terms of this
Agreement or of any payment owed to Evergreen under the terms of
this Agreement, Evergreen shall supply the Distributor with its
products in the regular course of its business and under terms as
set forth herein for its trademarked products.
b. During the term of this Agreement, Evergreen shall lease the Tab
Force(TM) system computers, validation units, Tab Works system,
and sell deals to Distributor as follows:
(i) During the term of this Agreement, Evergreen shall use its
best efforts to advertise and promote the sale of its products
within the boundaries of the state of Colorado under the "Tab
Force(TM)" trade name and trademark, and Evergreen shall supply
the Distributor with products equal in quality to the products
manufactured and sold to any Distributor or end user under the
"Tab Force(TM)" trade name and trademark.
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DISTRIBUTORSHIP AGREEMENT 12/99
4. COVENANTS OF THE DISTRIBUTOR. The Distributor covenants as follows:
a. The Distributor will rent from Evergreen the Tab Force(TM) system
in quantities sufficient to meet market demands within
Distributor's territory.
b. The Distributor will pay a monthly rental fee of $100 per
functioning and certified Tab Force(R) validation unit, per month.
The rent payment is due on the 5th of every month.
c. The Distributor shall pay promptly for Evergreen's products. All
Evergreen products and invoices will be paid net 25.
d. The Distributor will instruct its salespeople to use their best
efforts to encourage the sale, display and placement of
Evergreen's products within the Distributor's territory, and will
use it's best effort to encourage resale of such products.
e. The Distributor will list in feature type and illustrate in
adequate space, in all catalogs and sales bulletins that the
Distributor may produce in house and distribute to it's salesmen
as well as providing it's sales force with brochures and sales
literature provided by Evergreen.
f. The Distributor will cooperate fully with Evergreen in connection
with all Evergreen's promotions, special deals, and campaigns
which are in compliance with Colorado State Laws and governmental
rules, and when requested will inaugurate special drives through
it's salespeople and other clerks featuring such special deals and
campaigns.
g. The Distributor will display samples of Evergreen's products and
advertising displays in a prominent position in its showrooms.
h. The Distributor will permit Evergreen and its representatives to
address meetings of the Distributor's sales staff on behalf of the
Evergreen's products.
i. The Distributor will do everything within its power to feature,
promote, and advertise, as a part of its merchandising and sales
policy, such products of Evergreen as Evergreen shall from time to
time sell to the Distributor, and will use its best efforts to
stimulate and increase interest in Evergreen's products.
5. TERM. The term of this Agreement shall begin on the 6th day of January,
2000, and shall end on the 31st day of December, 2000, subject to the
following:
a. Either party on six (6) months' written notice to the other shall
be entitled to terminate this Agreement for any reason, but
without prejudice to any rights of either party to moneys due or
to become due under this Agreement.
b. If the Distributor is in default on any payment due to Evergreen
for a period of thirty (30) days, or if the Distributor defaults
in performing any of the other terms of this Agreement and
continues in default for a period of thirty (30) days after
written notice thereof, or if the Distributor is adjudicated
bankrupt or insolvent, or enters into a composition with its
creditors or if a receiver is appointed for it, or if a majority
of its voting stock is transferred, or if its ownership or
control is in any way substantially changed, then Evergreen shall
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DISTRIBUTORSHIP AGREEMENT 12/99
have the right to terminate this Agreement upon giving notice to
the Distributor at least thirty (30) days before the time when
such termination is to take effect, and thereupon this Agreement
shall become void, but without prejudice to the rights of either
party to moneys due or to become due under this Agreement.
c. Upon the termination of this Agreement for any reason, the
Distributor shall discontinue the use of the Tab Force(R),
trademark, labels, copyright, and other advertising media and
shall remove all signs and displays relating thereto; and, in the
event of failure so to do, Evergreen may itself remove such
articles at the Distributor's expense.
6. SALES QUOTAS AND PRICES.
a. The Distributor shall place and/or install NA or more Tab
Force(TM) validation units by NA, 2000, and shall place, and/or
install NA or more Tab Force(TM) validation units every three (3)
months thereafter until such time as NA Tab Force(TM) validation
units are in use, in order to maintain its distributorship rights,
in the territory. All units placed by the Distributors exceeding
the annual quota shall be included in the quota for the succeeding
year.
b. Tab Force(TM) pull-tabs may be purchased at the Distributor price
of .25(cents) per pull-tab for resale at prices set by
Distributor to customers within the territory.
c. The Distributor agrees that Evergreen will have the right, at its
discretion, to send a representative to act only as an observer
with Distributor employees on sales calls at the expense of
Evergreen.
d. The Distributor agrees that Evergreen shall have the right to
review and audit, at its expense, all contracts for the placement,
or use of Tab Force(TM).
7. ASSIGNMENT. This Agreement may be assigned by Evergreen and the performance
of its duties thereunder delegated. The Distributor shall have no right to
grant sublicenses except as approved by Evergreen.
8. ARBITRATION. The Distributor and Evergreen agree that, in the event of any
disputes or controversies concerning this Agreement, they will attempt in
good faith to settle and resolve any and all differences amicably in an
effort to maintain the goals set forth in this Agreement. All disputes or
disagreements shall be reduced to writing by the parties within three (3)
days of receipt of notice of a problem. The parties, upon receipt of the
written notice and a written response, shall agree to a seven (7) day
cooling-off period.
If, following the cooling-off period, the parties cannot resolve the
dispute, the parties further agree that all disputes and disagreements
shall be submitted to a disinterested third party to try and resolve the
dispute.
If the effort to voluntarily resolve the dispute is not successful, the
dispute shall be settled by arbitration in Colorado (state).
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9. NOTICE. Any notice, payment, or demand required under this Agreement shall
be addressed as follows:
Xxxxxx Xxxxx, President
Evergreen Xxxxxxx.xxx, Inc.
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Xxx Xxxxxx
Fungi, Inc. dba Bingo West of Colorado Springs
000 X. Xxx Xxxxx Xx.
Xxxxxxxx Xxxxxxx, XX 00000
10. BENEFIT. This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of Evergreen.
11. REPRESENTATION. The Distributor represents that it has adequate facilities,
personnel, and financial resources to perform the various covenants and service
herein set forth.
12. INSPECTION OF EQUIPMENT BY EVERGREEN. Evergreen shall have the right at any
time during business hours to enter upon the premises where the Equipment is
located for the purpose of inspecting it or observing its use, maintenance, and
operation.
13. INSPECTION AND ACCEPTANCE BY DISTRIBUTOR. Distributor shall have seven (7)
days from state certification of the Equipment pursuant to this Agreement within
which to inspect the Equipment, and shall notify Evergreen in writing within
said seven (7) days of any discrepancies between such Equipment and the
description, statement of condition, and valuation as stated in Attachment A
"Equipment Summary." Evergreen shall have a reasonable time to repair or replace
at its option, defective equipment under this section.
14. ALTERATIONS. Distributor shall not make any changes, alterations,
modifications, additions, or improvements to the Equipment, which is the subject
of the Agreement without the prior written consent of Evergreen. All additions
to and improvements shall immediately become the property of Evergreen upon
payment to Distributor for such improvements or additions.
15. REPRESENTATIONS AND WARRANTIES. The Distributor and Evergreen, respectively,
represent and warrant that each enters into this Agreement in good faith with
the full intent to carry our each and every one of the provisions for which the
party has any duty, responsibility, and/or liability to carry out, that the
party has full power and authority to enter into this agreement, that the terms
and conditions of this Agreement have been duly authorized, that none of said
terms and conditions violate any other agreements of the party and, as
applicable to the Facility, violate any ordinance and/or resolution and/or other
rule of the Distributor's customer, that the person signing this Agreement has
full power and authority so to sign and to bind the party to the terms and
conditions herein affecting the party, and that each party, respectively, shall
not knowingly associate with or employ any persons who are not licensable under
the territory's laws, Ordinance, or Regulations.
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DISTRIBUTORSHIP AGREEMENT 12/99
16. DEFAULT: REMEDIES.
a. Distributor will be in default under this Agreement if, for any
reason:
1. Distributor does not fully pay, when due, any payment due
in connection with this Agreement;
2. Distributor fails to perform, in a full and timely manner,
any agreement or obligation under this Agreement;
3. Any representation or warranty of Distributor to Evergreen
is false when made;
4. Distributor is in default for at least ten (10) days under
any other present or future agreement with Evergreen;
5. A bankruptcy, insolvency, or receivership proceeding is
filed against Distributor and is not dismissed for thirty
(30) days;
6. Distributor files or acquiesces in any bankruptcy,
insolvency, or receivership proceeding, as Debtor; or
7. The condition of Distributor affairs changes so that, in
Evergreen's opinion, Evergreen's credit risk is increased,
or the Evergreen in good faith believes that the prospect
of Distributor payment or performance is impaired.
b. If any such default occurs, Evergreen will give 7 days notice before
exercising one or more of the following remedies as it desires:
1. Terminate the term of this Agreement, as to any or all of
the Equipment;
2. Take possession of any or all of the Equipment, wherever
located and, for this purpose, enter any premises that
Distributor then owns or occupies during normal business
hours and accompanied by Distributor's representative.
Evergreen shall be for damage to said property if such
damage is caused by Evergreen or it's agents.
3. Take legal action to enforce Distributor's obligations
under this Agreement, including suing for damages;
4. Apply any advance payment, deposit, or similar money that
it holds to any amount that Distributor owes; and
5. Exercise any other right that Evergreen then has under the
Uniform Commercial Code or other applicable law.
17. INDEMNIFICATIONS. As Distributor user under this Agreement, Distributor
will be responsible for any resulting liabilities. Distributor will pay, and
indemnify Evergreen (and its employees, agents, and affiliates) against all of
the following that arise from, or are in any way connected with, the Equipment
or this Agreement (including the purchase, delivery, installation, maintenance:
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DISTRIBUTORSHIP AGREEMENT 12/99
a. All claims, losses, liabilities, damages, and expenses whatsoever
(including reasonable attorneys' fees) caused by the distributor or
it's agents;
b. All actual and alleged violations of any law or other governmental
rule, except for any of the foregoing claims, losses, etc., to the
extent caused directly and primarily by Evergreen's gross negligence
or willful misconduct.
18. LOSS OR DAMAGE: INSURANCE. Evergreen shall maintain insurance coverage on
the Product(s). The end user shall make every effort to protect Evergreen
product(s) and shall name Evergreen as also insured on their fire and theft
coverage.
19. DESIGNATED LAWFUL USE. Distributor agrees to use the Equipment in a careful
manner and in compliance with any applicable governmental law, ordinances, or
regulations.
20. WAIVER. No delay or omission to exercise any right of Evergreen or
Distributor under this Agreement shall be construed as a waiver of any such
right or as impairing any such right. Any waiver by Evergreen or by Distributor
of a single breach or default must be expressed and in writing and shall not be
construed as a waiver of any prior or subsequent breach or default.
21. NOTICES AND PAYMENTS. Any notice to be given, and any payments to be made,
under this Agreement, shall be personally delivered or mailed via U.S. Postal
Service mail, postage prepaid, at the addresses set forth in the opening
paragraph of this Agreement.
22. SURVIVAL OF DISTRIBUTOR'S COVENANTS. Distributor's covenants under this
Agreement shall survive the expiration or earlier termination of this Agreement
whenever the context permits.
23. BINDING. This Agreement shall be binding upon and shall inure to the benefit
of the parties, their legal representatives, successors, and assigns.
24. SEVERABILITY. If any provision of this Agreement is held invalid by a court
of competent jurisdiction, it shall be considered deleted from this Agreement,
but such invalidity shall not affect the other provisions that can be given
effect without the invalid provision.
25. JUDICIAL ENFORCEMENT: ATTORNEYS' FEES. A refusal to arbitrate, as provided
in Paragraph 8 hereof, may be remedied and an arbitration award may be enforced
in any court of competent jurisdiction; provided that, the parties hereto agree
that any such action shall be commenced and proceed in the United States
district court for the district of ______. In the event judicial proceedings are
instituted in connection with this Agreement, the unsuccessful party shall pay
to the successful party a reasonable amount for the successful party's
attorneys' fees to be fixed by the court.
26. CONDITIONS PRECEDENT. Evergreen and Distributor do hereby agree that the
following shall constitute express conditions precedent to the obligations of
the parties under this Agreement:
a. Evergreen and Distributor shall execute any and all additional
documents necessary or incidental to satisfy any term or condition of
this Agreement; and
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DISTRIBUTORSHIP AGREEMENT 12/99
b. Evergreen and Infinity shall obtain all government approvals necessary
in regards to the equipment Evergreen is leasing to distributor and
for products sold to Distributor for resale. Such government approvals
shall be obtained as expediously as possible for the State of Colorado
required licensing requests.
27. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original, but all of which together will
constitute one and the same instrument.
28. ENTIRE AGREEMENT. This instrument is intended by the parties as a final
expression of their agreement and as a complete and exclusive statement of its
terms. No course of prior dealings between the parties and no usage of trade
shall be relevant or admissible to supplement, explain, or vary any of the
terms set forth herein. Acceptance of, or acquiescence in, a course of
performance rendered under this or any prior agreement shall not be relevant or
admissible to determine the meaning of this Agreement even through the accepting
or acquiescing party has knowledge of the nature of the performance and an
opportunity to make objection. No representations, understandings, or agreements
have been made or relied upon in the making of this Agreement other than those
specifically set forth herein. This Agreement can only be modified in a writing
signed by the parties or their duly authorized agents.
IN WITNESS WHEREOF the parties have executed this Agreement.
DATED: 2-29, 2000
DISTRIBUTOR: EVERGREEN XXXXXXX.XXX, INC.,
BINGO WEST OF COLORADO SPRINGS EVERGREEN XXXXXXX.XXX, INC.,
a Colorado Corporation a Colorado Corporation
/s/ XXX XXXXXX /s/ XXXXXX XXXXX
------------------------------ -----------------------------------
By: Xxx Xxxxxx Xxxxxx Xxxxx
Its: President President
DISTRIBUTOR:
------------------------------
------------------------------,
INDIVIDUALLY
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EXHIBIT A
TERRITORY:
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DISTRIBUTORSHIP AGREEMENT 12/99
EXHIBIT A
TERRITORY: From Golden along the I-70 corridor West to the stateline and from
Castle Rock along Highway 86 to Xxxxx and then along I-70 East to the stateline.
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