Exhibit 10.4
THIS AGREEMENT MADE ON THE 16th DAY OF FEBRUARY, 2004
BETWEEN:
A N' K APPAREL SOURCE INC., a company incorporated under the laws of the
Province of British Columbia, having a registered and records office at Suite
301 - 4838 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0, and its business
office located at 0000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 3I8 ("A N'
K")
OF THE FIRST PART
AND
XXXXX INDUSTRIES LTD. ("XXXXX")
OF THE SECOND PART
COLLECTIVELY REFERRED TO AS THE "PARTIES"
WHEREAS:
A. This agreement ("Agreement") is intended to set forth the terms and
conditions of a business relationship between A N' K and Xxxxx;
X. Xxxxx has agreed to be a sales and marketing representative for A N' K's
products ("Products");
C. A N' K has agreed to appoint Xxxxx as a sales and marketing representative
for its Products; and
D. The Parties are desirous of formalizing their business relationship under
the terms and conditions set forth in this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH that the Parties understand and
agree to the following terms and conditions:
1. Xxxxx and A N' K agree to comply with and be bound by the terms and
conditions of this Agreement.
2. A N' K hereby appoints Xxxxx to be a sales and marketing representative
for its Products and Xxxxx hereby accepts such appointment.
3. This Agreement shall commence on February 16, 2004, ("Commencement Date").
4. During the term of this Agreement, Xxxxx shall have the right to sell and
market the Products, including any variations of the Products, developed
and manufactured by A N' K from time to time.
5. Xxxxx represents, and warrants to A N' K that it has the required skills
and experience to perform the duties and exercise the responsibilities
required of it to be a Sales and Marketing Representative. In carrying out
these duties and responsibilities, Xxxxx undertakes to comply with all
lawful reasonable instructions that it may receive from A N' X. Xxxxx
specifically undertakes and shall be responsible for the following:
(a) soliciting customer orders for the Products and forwarding the orders on
to A N' K;
(b) maintaining a high level of service to existing customers;
(c) responding promptly to requests for quotation, delivery and after-sale
service;
(d) providing A N' K price lists, sales brochures, literature and other
Product information to customers and prospective customers;
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(d) introducing new products to these accounts where possible;
(e) qualifying new business prospects and building an active, high potential
prospect list; and
(f) keeping accurate records and reports with respect to sales and prospects.
6. As a Sales and Marketing Representative, Xxxxx shall be responsible for
all expenses incurred by it in carrying out its duties under this
Agreement, including, but not limited to, transportation, meals, lodging
and entertainment.
7. Xxxxx acknowledges and agrees that A N' K shall determine the terms and
conditions of all sales and marketing efforts and that orders received by
A N' K from Xxxxx'x customers shall not be binding on A N' K until
accepted by A N' K.
8. The prices to be charged for all Products, including discounts and
allowances, shall be as specified by A N' K. No other credits or
allowances of any kind shall be granted by Xxxxx on behalf of A N' K.
9. It is understood and agreed that the commission arrangements set out in
Article 11 below are not to be varied without the mutual consent of the
Parties.
10. It is understood and agreed that the commission arrangements set out in
Article 11 below may be renegotiated by mutual consent of the Parties if A
N' K is not making a ten percent (10%) gross profit margin on the sale of
each Product.
11. As full compensation for all services provided for herein, A N' K shall
pay or cause to be paid to Xxxxx, and Xxxxx shall accept:
(a) a commission of two percent (2%) of the Net Invoice amount on sales of the
Products and for the purposes of this Agreement, the term "Net Invoice"
means the invoice price of the purchased products, less normal or
customary discounts or allowances; and
(b) a further commission of one and one - half percent (1.5%) on any
additional Products Xxxxx sells after it has earned a minimum net amount
of eighty thousand dollars ($80,000) per year in commissions based upon
the two percent (2%) commission arrangement set out in (a) above.
12. At the time of each shipment of Products sold by Xxxxx to customers, A N'
K will provide to Xxxxx copies of A N' K's commercial invoice, the packing
list and the xxxx of lading.
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13. On or about the first day of each calendar month, Xxxxx shall prepare and
submit to A N' K an invoice for commissions earned by it on Products
shipped by A N' K during the immediately preceding calendar month. Each
invoice shall be accompanied by a summary description of the preceding
month's shipments sufficient to identify the shipments by customer, by
purchase order number, by shipping date and by the commercial invoice
amount.
14. Reimbursement of commissions earned on shipments shall be immediately due
and payable to Xxxxx once A N' K receives payments for the Products from
the customers.
15. The rights which accrue to A N' K under this Agreement shall pass to its
successors or assigns. The rights of Xxxxx under this Agreement are not
assignable or transferable in any manner.
16. In the event that any provision in this Agreement shall be deemed void or
invalid by a court of competent jurisdiction, the remaining provisions
shall be and remain in full force and effect.
17. The waiver by either party of any breach or violation of any provision of
this Agreement shall not operate, or be construed, as a waiver of any
similar subsequent breach or violation of it.
18. This Agreement constitutes the entire agreement between the Parties with
respect to the matters set out in it and any and all previous agreements,
written or oral, express or implied between the Parties or on their behalf
relating to such matters, are terminated and cancelled and each of the
Parties releases and forever discharges the other of and from all manner
of action, causes of action, claims or demands under or in respect of any
agreement.
19. Any modification to this Agreement must be in writing, signed by the
Parties or it shall have no effect and shall be void.
20. This Agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia, as they were on the date of
execution of this Agreement by A N' K and Xxxxx.
21. (1) Any notice required or permitted to be given to Xxxxx shall be
sufficiently given if delivered to Xxxxx personally or if mailed by
registered mail to Xxxxx'x address last known to A N' K, or if delivered
to Xxxxx via facsimile.
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(2) Any notice required or permitted to be given to A N' K shall be
sufficiently given if mailed by registered mail to A N' K's head
office at its address last known to Xxxxx.
(3) Any notice given by mail shall be deemed to have been given
forty-eight (48) hours after the time it is posted.
IN WITNESS WHEREOF the Parties have duly executed this Agreement on the 16th day
of February, 2004.
SIGNED SEALED AND DELIVERED in the presence of:
/s/ XXXXX XXXXX
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XXXXX XXXXX
/s/ XXXXXX XX
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Signature of witness
Xxxxxx Xx
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Name of witness
/s/ XXXXXXX XXX
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for A N'K APPAREL SOURCE INC.
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