THIS NON - EXCLUSIVE MARKETING AGENCY AGREEMENT Made as of the 13th day of June, 2007
THIS
NON - EXCLUSIVE MARKETING AGENCY AGREEMENT
Made
as
of the 13th day of June, 2007
BETWEEN:
Wataire
International Inc. a company incorporated in the
State
of Washington, USA and Head Offices in California.
Suite
300, Warner Center , 00000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx ,XX
91367
(The
“Company”)
AND
Access
Energy Technologies Ltd.
Suite
0000 Xxxxxxx Xxxxxx
0000
Xxxx 00xx
Xxx
Xxxxxxxxx,
XX Xxxxxx X0X 0X0
(The
“Agent”)
The
Company is the legal and beneficial owner of all right, title, intellectual
property, and interest in and to the trade name, copyright, brand and trademark
“Wataire” with respect to the Product as herein and after defined.
A.
|
The
Company is the legal and beneficial owner of Intellectual property
and
design of Water Generating Machines and has developed packaging,
accessories and promotional materials for the purposes of its sale
(the
“Product”);
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B.
|
The
Marketing Agent has requested and the Company has agreed to grant
to the
Agent, the distribution and marketing rights for the Wataire Branded
Product on the terms and conditions
hereof.
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NOW
THEREFORE THIS NON - EXCLUSIVE AGREEMENT TO BUILD PRIVATE LABEL PRODUCTS
WITNESSES
that
in
consideration of the premises and mutual covenants and agreements hereinafter
set forth, with the Agent and the Company the Parties agree as
follows:
1.00
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APPOINTMENT
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1.01
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The
Company hereby appoints the Marketing Agent its Private Label Branded
sales representative within the country of Nigeria (The “Territory”) upon
the terms and conditions hereinafter set forth and the Agent hereby
accepts such appointment. Wataire at its sole discretion shall determine
the scope of a Marketing Agent’s territory based on purchases, financial
capacity and other considerations for each area sought by the
Agent.
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1.02
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Non-Exclusivity
of Appointment: Providing that
the Marketing Agent has not breached any provisions of this agreement
and
provided further that the Marketing Agent diligently and faithfully
carries out the duties and obligations imposed on it by this agreement,
the Marketing Agent shall, during the term of this non-exclusive
agreement, and any extended period of agreement or upon renewal of
this
agreement, be the designated Wataire marketing Agent of the Company
within
the specific Territory.
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1
The
Company, during the life of this current agreement, will not enter into an
exclusive distribution agreement with another firm without first offering the
current licensee the opportunity to make its own presentation and application
for exclusivity. The Company’s decision as to any exclusivity will be based on
an objective assessment of the capabilities of any applicant to effectively
represent the Company and its products to the fullest possible commercial
exploitation of the Company’s product offerings. In this circumstance if, in the
Companies sole assessment, the Marketing Agent does not have the financial
or
marketing and service capacity to fulfill the needs of some Purchasers in the
area ,the Company and the Marketing Agent agree to work together to complete
the
sale. If the Company does intervene, the Company shall negotiate a finders
fee
for the agent. This provision is to prevent lose of any prospective sale and
insure cooperation between the Company and the Marketing Agent. The Marketing
Agent shall be responsible for service work on these accounts.
1.03
|
Pricing
Policy:
While the Company does not wish to set pricing for the Marketing
Agent the
Company reserves the right to set Pricing for the Marketing Agent
network
to insure continuity and fair dealing.
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1.04
|
Sub
Agents:
The company grants the right to the Marketing Agent to appoint Sales
Dealers in the territory, such appointments shall be at the Marketing
Agents own discretion and expense.
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1.05
|
Sales
activities: The
company grants the non-exclusive rights to the Marketing Agent to
market,
promote and sell Private brand named products within the
territory.
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1.06 |
Sales
quota: The
Company reserves the right to complete sales in the territory if
as above
(1.02) in the Companies assessment the Marketing Agent is not
satisfactorily serving prospective Buyers. The Company agrees that
any
sales or orders it generates directly or indirectly within the territory,
or for use and operation within the territory will be counted as
part of
the Marketing Agents required sales quota.
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Customer
Inquiries.
The
Company covenants and agrees that all inquiries with respect to, or orders
for,
Wataire brand Products received by the Company for the Territory, may be
referred to the Marketing Agent for the Marketing Agent’s attention in
accordance with the terms of this agreement.
The
Marketing Agent covenants and agrees that all inquiries with respect to, or
orders for the Product received by the Agent from outside of the Territory
shall
be referred to the Company for the attention of the Company or other agents
of
the Company.
2
2.00
|
TERM
|
The
term
of this non-exclusive agreement shall be for an initial period of 180 days
and
will commence immediately upon execution of this agreement.
Renewal.
The
Company and the Marketing Agent agree to negotiate an extension to this
agreement if within the term of this agreement, the Marketing Agent is in the
effective cause of completing the terms contained within.
3.
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OBLIGATIONS
OF THE AGENT
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During
the term of this agreement the Marketing Agent shall use his best efforts to
advertise and promote the private branded sale of the Products of the Company
and to make regular and sufficient contact with the present and prospective
customers of the Company in the Territory.
3.01
|
Upon
request, supply the Company with quarterly records of all contacts
made by
the Marketing Agent’s representatives in the Territory. Supply the Company
with records of all contacts made by the Marketing Agent’s
representatives, to present and prospective customers of the Company
in
the Territory, including the manner of such contacts;
and
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3.
02
|
The
Marketing Agent assumes
all responsibilities and expenses for “After Sales Service”, and must work
towards stocking a minimum quantity of replacement parts equal to
3-4% of
their projected sales volume. The Company agrees to pass on the benefits
of any warranty programs to the Marketing Agent offered by it’s suppliers.
The Company currently offers a full one year parts replacement warranty.
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3.03
|
Limit
his sales activities to the Territories approved by the
Company.
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4.00
|
STATUS
OF AGENT
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4.01
|
The
status of the Marketing Agent shall be that of an Independent Contractor
and the Marketing Agent shall have no authority to assume or create
any
obligation whatsoever expressed or implied, in the name of the Company,
or
to bind the Company in any manner whatsoever.
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4.02
|
The
Marketing Agent shall have no authority hereunder to enter into any
contract of sale or employment on behalf of the Company, or to endorse
the
Company’s checks, or to make allowances or adjustments on accounts for the
return of merchandise, except pursuant to written authorization of
the
Company. The Company retains the right to review and approve of the
legal
language in any Dealer appointment agreement entered into by the
Marketing
Agent that will or could oblige the Company in any manner.
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4.03
|
The
Marketing Agent undertakes and agrees that he will not furnish to
any
customer or prospective customer, any warranties, undertakings, or
guarantees of any nature whatsoever that may intend to involve the
responsibility or liability of the Company unless authorized by the
Company in writing. In the event that the Marketing Agent does allow
or
furnish to customers or prospective customers, warranties, undertakings
or
guarantees of any nature whatsoever, which might involve the
responsibility or liability of the Company, and which is not authorized
by
the Company in writing, the Marketing Agent agrees to indemnify and
save
the Company harmless from any claims, demands, damages, costs or
losses
whatsoever arising out of or in any way connected with such warranties,
undertakings or guarantees.
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3
5.00
|
EXPENSES
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5.01
|
Except
as hereinafter provided, all expenses in connection with the Marketing
Agent’s performance of this agreement and its activities as Marketing
Agent for the Company, including, but not limited to travel, automobile,
salaries and supplies, shall be borne by the Marketing Agent and
he shall
be solely responsible for the payment
thereof.
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At
its
discretion and in the interest of promoting sales the Company shall provide
at
its expense, technical information, access to marketing materials and technical
personal in the territory for purposes of training, product launches, and trade
shows.
6.00
|
ACCEPTANCE
OF ORDERS
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6.01
|
Orders
received by the Marketing Agent for the purchase of its Branded Products
of the Company shall not bind the Company until accepted by it. The
Company reserves the sole and exclusive right to accept or reject
any
order. In the interests of duty and corporate growth the Company
shall
make every effort to complete it’s supplier obligations and agrees not to
unreasonable or capriciously reject any orders obtained as a result
of the
efforts of the Marketing Agent. This condition is in part to protect
us
against supply shortages, acts of God, natural disasters and component
supply problems.
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7.00
|
OBLIGATIONS
OF THE COMPANY
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7.01
|
During
the currency of this agreement the Company
shall:
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7.01.01
|
Permit
the Marketing Agent to hold himself out as the area Marketing Agent,
for
the Wataire Brand Product in the Territory, and during any renewal
term
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7.01.02
|
Permit
the Marketing Agent to use all intellectual property rights and know
how
and associate with the Product in the course of their performance
of this
agreement;
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7.01.03
|
Provide
technical and promotional materials, pricing information and other
related
materials as may be reasonably required to market the
Product.
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7.01.04
|
Provide
to the Marketing Agent a commercially acceptable industry standard
one-year parts replacement warranty for the Product.
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4
8.00
|
PRICING
AND TERMS
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8.01
|
The
Marketing Agent agrees to the minimum purchase quantity as
follows:
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8.01.01
|
Initial
order of one 40-ft container of WII-4010 units for designated territory
as
described above. This product order shall be placed within first
90 days
of signing the agreement.
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8.01.02
|
Annual
minimum quantities of 3 - 40 ft. containers). with a minimum one
container
purchase every 120 days
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8.01.03
|
All
purchases by the Marketing Agent will be on
a FOB
factory basis.
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8.01.04
|
The
sales price of the commercial industrial units, the W II-4010 units
and
all future product will be subject to price change under the terms
of this
contract, in USD and are to be determined as equipment is ordered.
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I)
|
CI
- 2500 LPD units @ Price to be determined
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II)
|
CI
- 5000 LPD units @ Price to be determined
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III)
|
W
I
I-4010, 1 to 3 Containers @ Price to be determined
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IV)
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W
I
I-4010, 4 to 10 and more Containers will be @ Price
to be determined
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8.01.05 |
An
Irrevocable Transferable Letter of Credit for the minimum required
purchase as per section 8.01.01 posted with a financial Institution
acceptable to the company within 90 days of the signing of this agreement
is required.
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8.01.06 |
The
Company will facilitate orders immediately upon receiving the irrevocable
Letter of Credit, and shall make its best effort to deliver or ship
all
goods within 12-14 weeks of receiving the Letter of
Credit.
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9.00
|
NON-COMPETITION
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9.01
|
If
and when this Marketing Agency Agreement becomes exclusive for an
area the
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9.02
|
Agent
hereby covenants and agrees that he will from that date forward not,
during the term of that exclusive agreement and for three years following
the termination of said agreement, whether as an officer, employee,
agent,
director, shareholder, partner, or otherwise be engaged in, be connected
with, invest in, loan money to, or hold shares in any business or
any
corporation which carries on a similar business. This requirement
includes
the manufacture, distribution or sales of the products or any other
similar products governed by that exclusive agreement or any renewals,
modifications, or extensions hereof. These conditions shall not be
binding
upon the Marketing Agent, if for any reasons the Company terminates
its
business in the countries where it is incorporated.
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5
10.00
|
TERMINATION
WITHOUT NOTICE
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10.01 |
The
Company may, in its sole discretion, terminate this agreement without
notice or delay on the happening of any of the following events:
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10.01.01
|
The
Marketing Agent breaching any of the terms or conditions of this
agreement;
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10.01.02
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The
Marketing Agent becoming insolvent or being unable to pay his debts
as
they generally become due;
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10.01.03
|
The
Marketing Agent making an assignment for the benefit of his creditors
or
being petitioned into Bankruptcy;
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10.01.04
|
A
Receiver or Trustee in Bankruptcy of the Marketing Agent being appointed;
or
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10.01.05
|
The
Marketing Agent is not being the effective cause of the sale of a
minimum
of 50% of the agreed annual quantities by the end of the first 12
months.
In the event of termination for failure to reach the required sale
targets, the marketing Agent shall continue to be obligated under
this
agreement as set out herein, for any sales or dealership agreements
entered into prior to the date of
termination.
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11.00 |
GENERAL
PROVISIONS
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11.01
|
Force
Majeure.
In
the Event of an inability or failure by the Company to manufacture,
supply
or ship any of the Product by reason of any fire, explosion, war,
riot,
strike, walk out, labor controversy, flood, shortage of water, power,
labor, or transportation facilities of necessary materials or supplies.
Default or failure of a Carrier, breakdown in or the loss of production
or
anticipated production from plant or equipment, act of God or public
enemy, any law, act or order of any court, board, government or other
authority of competent jurisdiction, or any other direct cause (whether
or
not of the same character as the foregoing) beyond the reasonable
control
of the Company, then the Company shall not be liable to the Marketing
Agent during the period and to the extent of such inability or failure.
Deliveries omitted in whole or in part while such inability remains
in
effect shall be cancelled.
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11.02
|
Governing
Law.
This agreement shall be made and construed in accordance with the
laws of
the State of California, USA. All disputes arising from or in connection
with this contract shall if possible be settled amicably through
friendly
negotiation. In case no settlement can be reached thereby the dispute
may,
if either Party so requires, be resolved by arbitration, to be approved
by
mutual consent.
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6
11.03
|
Entire
Agreement.
This agreement together with all other documents incorporated by
reference
shall constitute the entire agreement between the Company and the
Marketing Agent. With respect to all matters herein it is agreed
that its
execution has not been induced by, nor does the Company or the Marketing
Agent rely upon or regard as material, any representations or writing
whatsoever not incorporated herein and made a part hereof and this
agreement shall not be amended, altered or qualified except by memorandum
in writing signed by the Company and the Marketing Agent. Any amendment,
alteration or qualification hereof shall be null and void and shall
not be
binding upon any party who has not given its consent
aforesaid.
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11.04
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Time
of the Essence.
Time shall be of the essence of this agreement and every part
hereof.
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11.05
|
Notice.
Any
notice, demand or other communication by the terms hereof required
or
permitted to be given by one party to another shall be given in writing
by
registered mail, postage prepaid, addressed to such other party or
delivered to such other part as
follows:
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COMPANY:
Wataire
International Inc.
Suite
300, Warner Center
00000
Xxxxxx Xxxxxx, Xxxxxxxx Xxxxx
Xxxxxxxxxx
00000
AGENT:
Access
Energy Technologies Ltd.
Suite
0000 Xxxxxxx Xxxxxx
0000
Xxxx 00xx
Xxx
Xxxxxxxxx,
XX Xxxxxx X0X 0X0
Or
such
other address as may be given by any of the parties. Any notice required or
permitted under this agreement shall be in writing and shall be deemed to be
Given
upon the date of personal delivery or within 10 days of being sent by Courier
or
as registered mail postage prepaid and addressed to the addressee at the last
address recorded on the records of the Company. Provided however, that during
any postal interruption, the said 10 days period shall not be deemed to commence
running until after the termination of such postal interruption.
11.06
|
Non-Waiver.
No
waiver by any party of any breach by any other party of any of its
covenants, obligations and agreements hereunder shall be a waiver
of any
subsequent breach of any other covenant, obligation or agreement,
nor
shall any forbearance to seek a remedy for any breach be a waiver
of any
rights and remedies with respect to such or any subsequent
breach.
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7
11.07
|
Number
and Gender.
All terms and words used in this agreement regardless of the number
and
gender in which they are used shall be deemed and construed to include
any
other number, singular or plural, and any other gender, masculine
or
feminine or neuter as the context or sense of this agreement or any
paragraph or clause herein may require, the same as if such words
would
have been fully and properly written in the appropriate number and
gender.
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IN
WITNESS WHEREOF the parties hereto as of the day and year first above written
have duly executed this agreement.
SIGNED,
SEALED AND DELIVERED
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In
the presence of:
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Wataire
International Inc
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Name
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Per
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Address
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Authorized
Signatory
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June-13-2007
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Occupation
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SIGNED,
SEALED AND DELIVERED
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Access
Energy Technologies Inc
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In
the presence of:
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Name
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Per
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Address
|
Authorized
Signatory
|
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June-13-2007
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Occupation
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8