SALES AND DISTRIBUTION AGREEMENT
Exhibit
10.3
This
Exclusive Agreement is made and
entered into in Encinitas, California as of this 4th day of October 2007 by
and
between YamaBuggy LLC. (the "Company") and Yamabuggy Sales and
Distribution, Inc. (the "Contractor").
RECITALS
The
Company is engaged in the business
of manufacturing, distribution and marketing of Yamaha JV powered dune buggy
(the "Products"). Contractor is a newly formed sales
organization and the Company desires to secure the services of Contractor for
exclusive representation in North America upon the terms and conditions set
forth below, and Contractor desires to be so retained by the
Company.
NOW,
THEREFORE, in consideration of the
foregoing, and the mutual covenants and promises contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each party hereto to the other, it is agreed as
follows:
AGREEMENT
1. Provision
of Services.
Contractor
agrees to, and shall solicit sales of the Products to those independent retail
accounts (collectively "Customers") who are or which may be
interested in acquiring the Products in North America. All written orders taken
by Contractor for sales of the Products shall be effective only upon written
acceptance by the Company. All credit approvals; xxxxxxxx and orders
of the Products shall be processed and handled by the Company
directly. The Contractor shall have no authority to make any credit
approvals or collections on behalf of the accounts of the Company, unless
expressly authorized to do so.
2. Performance. Contractor
shall maintain his/her own schedule, and shall determine in his/her sole
discretion the manner of performance and the amount of time to devote to the
solicitation of sales of the Products, provided Company may from time to time
establish performance goals for Contractor to obtain. The failure of
Contractor to reach these performance goals may be cause for termination of
this
Agreement. Contractor will have 30 days to respond to Company’s
performance goals and establish a collaborative effort with Company to increase
sales. Collaboration may require, but not limited to additional
support in marketing, product development, and competitive analysis by company,
to help support the expected goals. Contractor will use all customary
efforts to communicate with Company on establishing goals. Both
parties recognize the responsibilities of product sales within the context
of
this agreement and will work with best efforts to support and build the sales
channel.
3. Remuneration.
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A.
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The
Contractor shall receive 5% of net revenues of the sales, and through
a
“lock- box” arrangement reconcile the revenue and release 95%
of the revenue to the Company and 5% to the Contractor. Payment to
Company
shall be due upon receipt by lock box of payment for such
Products. The invoice price on which the payment shall be based
shall not include any freight charges or taxes and shall be reduced
by the
amounts of any discounts, returns or allowances, but at no time shall
the
discount or allowance be greater than 10% of the Dealer sales price,
assuring Contractor of a minimum of $200 per Product unit
sold.
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4. Sale
Price of Products. The
Company shall determine all prices and terms of sale for its
Products. The Company will notify Contractor, in writing, of price
changes.
5. Warranties.
The Contractor shall not make any warranties with respect to the Products of
the
Company. Any warranties to be made by the Company shall be reflected
in its acceptance of an order, invoice or other contract forms.
6. Term.
The initial term of this Agreement will be 5 years, and automatically
renew for the same term, unless otherwise terminated by the Company and the
Contractor.
7. Relationship
of Parties. Contractor
will sell and market only products offered by YamaBuggy LLC. Contactor and
it’
stockholders, under this agreement shall conduct itself for the sole benefit
of
YamaBuggy LLC.
8. Expenses. Contractor
shall be responsible for and shall pay, and hereby indemnifies Company against,
all expenses incurred in connection with soliciting the sale of the Products
by
the contractor. Company agrees to indemnify Contractor against
all claims, expenses, related to product liability, production, corporate
marketing, sales and any other expense or liability of Company.
9. Confidentiality.
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A.
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Contractor
and Company agrees that it will not, at any time during the term
of this
Agreement or thereafter, in any form or manner, directly or indirectly,
voluntarily or involuntarily, disclose, furnish or make accessible
to any
person or other entity or use for his/her own benefit, other than
in
furtherance of the business and interests of the Company or Contractor,
any Confidential Information (hereinafter defined) which it may obtain
or
have access to, receive, contribute to, originate, discover or relating
to
Trade Secrets (as that term is defined under applicable law in the
State
of Nevada), product specifications, customer lists, , prospective
customers, services and sales information. Confidential
Information shall include, without limitation, any of the following
types
of information outside of the public
domain:
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(i)
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Any
and all forms of raw and other data relating to the Company's or
Contractors business, the Products or processes, whether or not marked
"confidential", derived from any and all sources,
including without limitation: meetings; information from
correspondence or otherwise analyzed data; computer printouts and
graphic
materials.
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(ii)
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Any
and all materials, documents, information, systems, processes and
techniques relating to the Products, the Company’s computer software,
market or other research techniques, and any and all materials, documents,
information, systems, processes obtained from or on behalf of or
at the
direction of the Company or Contractor, or any current or prospective
customer of the Company or
Contractor.
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(iii)
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Any
and all information, computer printouts, materials, documents, processes,
schematics, compilations or reports relating to the sales history
of any
current or prospective customer, customer files, pricing structure,
rebates, marketing information, customer base or business forms of
the
Company or Contractor.
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B.
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Contractor
confirms, acknowledges and agrees that any and all tangible and intangible
records, tapes, notes, pictures, video tapes, printouts and documents
which it may use, create, utilize or possess during the term of this
Agreement, including but not limited to those written, produced or
created
by Contractor, are the sole and exclusive property of the Company
and may
not be duplicated for Contractor's own benefit without the express
written
consent of the Company which will not be unreasonably
withheld. All such items in Contractor's possession or control
will be immediately delivered to the Company upon request and, if
not
earlier requested, upon the termination of this
Agreement.
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C.
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The
provisions of this Section 10 shall survive termination of this Agreement,
and shall survive the Term of this Agreement for a period of three
(3)
years following termination of the
Agreement.
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10. Restrictive
Covenant. In
view of Contractor's and Company’s access to Confidential Information and Trade
Secrets of the Company and Contractor, and in consideration of the value of
such
property to the Company and Contractor, during the term of this Agreement and
for a period of two years after termination of this Agreement for any reason,
Contractor and Company shall not compete, without the prior written consent
of
the Company.
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A.
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Contact
or solicit the trade or patronage of any of the customers of the
Company
or Contractor for his/her self or any other person or entity, with
respect
to the business engaged in by the Company or Contractor. The
term "customers" shall for purposes hereof be deemed to
include, without limitation, the officers, directors, agents, employees,
parents, subsidiaries and affiliates of such customers, and all persons
or
organizations with whom the Company or Contractor has done business
during
the term of this Agreement
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B.
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Solicit,
induce or attempt to induce any employee of the Company or
Contractor to leave their respective Company's employ to become connected
in any way with, or employ or utilize any such employee in any other
business engaged in the sale or distribution of products similar
to the
Company's or Contractors.
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11. Remedies. Notwithstanding
any dispute involving application of the injunctive relief as provided in
Section 12 hereof, any other dispute or claim arising out of any provision
of
this Agreement, whether based on statute, regulation, contract, tort or
otherwise, shall be submitted to arbitration before a single arbitrator pursuant
to the commercial arbitration rules of the American Arbitration
Association. Any such arbitration shall be conducted in San Diego
County, California. An arbitration award rendered pursuant to this
Section 12 shall be final and binding on the parties and may be submitted to
any
court of competent jurisdiction for entry of a judgment thereon.
12. No
Employee Benefits. Contractor
shall not be eligible for any benefits payable to employees of Company or
otherwise.
13. Assignment. This
Agreement may not be assigned by either party in whole or in part without the
prior written consent of the other party hereto, except as specifically provided
herein. This Agreement may be assigned by the Company or Contractor,
in its sole discretion, to any subsidiary or affiliate of the
Company or Contractor or to any successor of the Company or
Contractor either by merger or acquisition of substantially all of the assets
or
the business of the Company or Contractor as a going concern.
14. Applicable
Law. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California, without reference to any conflicts of law
provisions.
15. Binding
Effect. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and there respective heirs, legal or personal representatives, successors and
assigns.
16. Notice. All
notices required hereunder shall be in writing and shall be deemed to have
been
given if delivered personally or by United States certified or registered mail,
postage prepaid, return receipt requested, or by a recognized overnight delivery
service to the parties at their respective addresses set forth below their
signatures to this Agreement, or to such other address as shall be specified
in
writing by either party to the other in like fashion.
17. Entire
Agreement. This
Agreement sets forth and constitutes the entire agreement and understanding
of
the parties with respect to the subject matter hereof. This Agreement
supersedes any and all prior agreements, negotiations, correspondence,
undertakings, promises, covenants, arrangements, communications, representations
and warranties, whether oral or written (together the "Prior
Communications") of any party to this Agreement and no party to this
Agreement may rely or shall be deemed to have relied upon any Prior
Communications.
18. Severability. If
any provision of this Agreement shall be declared by any court of competent
jurisdiction to be illegal, void or unenforceable, the other provisions hereof
shall not be affected thereby but shall remain in full force and
effect. Furthermore, if any of the restrictions regarding
post-termination activities is found to be unreasonable or invalid, the court
before which the matter is pending shall enforce the restriction to the maximum
extent it deems to be valid and enforceable. Such restrictions shall
be considered divisible both as to time and as to geographical
scope.
19. Waiver. Failure
of either party hereto to insist upon strict compliance with any of the terms,
covenants and conditions hereof shall not be deemed a waiver or relinquishment
of such terms, covenants and conditions or of any similar right or power
hereunder at any subsequent time.
20. Amendment. A
written instrument executed by both parties hereto may not amend except this
Agreement.
21. Construction. Whenever
applicable in this Agreement, the singular and the plural, and the masculine,
feminine and neuter shall be freely interchangeable, as the context
requires. The Section headings or titles shall not in any way control
the construction of the language herein, such headings or titles having been
inserted solely for the purpose of simplified reference. Words such
as "herein", "hereof", "hereinafter", "hereby", and "hereinabove" when used
in
this Agreement refer to this Agreement as a whole, unless otherwise required
by
the context. The Recitals constitute an integral part of this
Agreement and are fully incorporated herein. All Section and
subsection references set forth herein refer to the corresponding Sections
and
subsections of this Agreement.
22. Further
Assurances. Contractor
and Company agrees to and shall execute and deliver such further instruments
and
perform such further acts as may be requested by the Company or Contractor,
or
which are otherwise required to carry out the intent and purposes of this
Agreement.
23. Venue. All
actions or proceedings in any way, manner or respect arising out of or from
or
related to this Agreement shall be arbitrated only in San Diego County, State
of
California.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day,
month and year first above written.
Company:
YamaBuggy LLC
/s/
XXXX XXXXXXXXX 10/04/2007
(Signature/
Date)
Contractor:
Yamabuggy Sales and Distribution, Inc.
/s/
XXXX XXXX 10/04/2007
(
Signature/ Date)
