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Just Ladies Fitness Ltd.
Manufacturer/Dealer
Agreement
POINT OF SALE AND CUSTOMER MANAGEMENT SOFTWARE SERVICES
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June 2006
MANUFACTURER / DEALER AGREEMENT
This Manufacturer / Dealer Agreement ("Agreement") is entered into as of the
29th day of June 2006, ("Effective Date") by and
Between
Just Ladies Fitness Ltd. (Just Ladies Fitness), a British Columbia
limited company, with a business address at Suite #00-00000 00xx
Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0,
And
Fitness Xpress Software, Inc., ("Fitness Xpress") a Nevada Corporation
organized under the laws of Nevada, with a business address at Suite
#000 - 0000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0.
WHEREAS, Just Ladies Fitness is a manufacturer developer of leading edge
point-of-sale and customer management software to the North American fitness
industry. ("JFL Software").
WHEREAS, Fitness Xpress intends to be an industry leader in point-of-sale and
customer management software to the fitness industry.("JFL Software products");
and
NOW THEREFORE, in consideration of the premises and mutual agreements contained
in this Agreement and other good and valuable consideration, the receipt and
sufficiency of which Just Ladies Fitness and Fitness Xpress, (collectively the
"Parties") acknowledge, the Parties agree as follows:
1. GENERAL PROVISIONS
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1.1. Both Parties agree that Just Ladies Fitness shall provide to Fitness
Xpress a high quality software product line as described in this
Agreement. Fitness Xpress will market this software to North American
fitness center chains. For purposes of this Agreement, the term
"customers" shall include, but not be limited to resellers and single
site fitness centers.
1.2. From time to time in order to improve, modify or extend the Just
Ladies Fitness software, Just Ladies Fitness may make changes to its
software ("JFL Software Changes"), but in no event shall such changes
materially decrease the quality of the JFL Software product line
provided to Fitness Xpress.
1.3. The Parties shall use their best efforts to accomplish the initial
launch of the Just ladies Fitness Software ("Initial Launch Date").
One hundred twenty (120) days from signing of this Agreement.
1.4. Each Party shall promptly notify the other in writing of any event,
which might result in such Party's inability to continue to meet its
obligations under this Agreement.
2. Obligations of the Parties
2.1. Dealer must be trained on the software and demonstrate competency to
present the product.
2.2. Dealer cannot copy or in any way take any of the intellectual property
of the software
2.3. Dealer must commit to a "best effort" marketing plan including
attendance at industry specific trade shows, lead generation follow up
and employment of trained sales professionals.
2.4. Dealer must have a detailed informational web page devoted to the
fitness industry and software.
2.5. Dealer must show an ability to meet agreed to order volumes and sales
projections.
2.6. Dealer must be able to provide "Level 1" support.*
2.7. The manufacturer will ensure the product has been thoroughly beta
tested and provide and/or act as a reference.
2.8. The manufacturer will provide an informational web page with up to date
marketing and product information.
2.9. The manufacturer will provide "lead generation" when ever possible.
2.10. The manufacturer will provide product training at their facility.
2.11. The manufacturer will provide billable training staff.
2.12. The manufacturer reserves the right to utilize their own billable
training staff until the Dealer has completed a pre-determined number
of systems installs.
2.13. The manufacturer will provide user and install manuals on CD.
2.14. The manufacturer will provide within a reasonable time frame on-line
install procedures and video training.
2.15. The manufacturer will provide "Level 2" support* to all dealers
2.16. Product Coordinator: Just Ladies Fitness and Fitness Xpress will each
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designate their own Product Coordinator to coordinate the process
described below.
2.17. The Product Advisory Process will include in-person/telephonic/
electronic communication between representatives, which should be
ongoing, or occur not less than once a week.
2.18. Intellectual Property, Just Ladies Fitness agrees that Intellectual
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Property rights to it's software created specifically for Fitness
Xpress's Customers remain the property of Just Ladies Fitness.
2.19. Exclusivity, Just Ladies Fitness agrees that any products created and
formulated specifically for Fitness Xpress will not be sold,
licensed, or copied to any other company, individual, or
organization, without the express written consent of Fitness Xpress.
2.20. Products: To be developed over the next 12 months Billing Cycle. To
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be discussed.
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2.21. Xxxxxxxx and Collections. Fitness Xpress shall be responsible, at its
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sole expense, for all invoicing and collections with its customers,
end-users, agents, subagents or resellers. Just Ladies Fitness will
not be responsible for any collections or bad debt by Fitness
Xpress's customers, end-users, agents, subagents or resellers.
3. MARKETING AND BRANDING.
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3.1. Use of Trademarks, Service Marks and Trade names. The Parties agree to
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display or use trade names and brands of the other Party only in
connection with the sale, distribution or promotion of the JFL
Software brand(s) used by Fitness Xpress in conjunction with this
Agreement.
3.2. Upon termination of this Agreement, any and all rights or privileges
of a Party to use the other Party's trade names, service marks, brands
or trademarks shall expire. The provisions of this section shall also
apply to third party branding incidental to this Agreement.
3.3. Business Conduct. Neither party shall make any representation with
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respect to the other party that is inconsistent with the terms and
conditions of this Agreement.
3.4. Fitness Xpress Marketing Expenses. Fitness Xpress as the Dealer and
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reseller of the software developed by Just Ladies Fitness, is
responsible for all expenses and obligations incurred by Fitness
Xpress as a result of its efforts to attract and solicit customers.
4. CHARGES AND BILLING STATEMENTS.
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(General Terms to be discussed)
4.1. It is understood that all state, provincial, and federal taxes will be
advertised and collected on all applicable Products and Services. Just
Ladies Fitness and Fitness Xpress both shall be responsible for all
applicable taxes, including but not limited to sales or valued-added
taxes, utility or excise taxes, fees and/or surcharges that are
imposed by federal, state, or local governments.
4.2. Pricing. Just Ladies Fitness will provide a published price list on
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a regular basis to the Dealer. The Dealer shall pay to Just Ladies
Fitness for the products it purchases from Just Ladies Fitness at
45% discount from Just Ladies Fitness published list prices.
4.3. Invoices shall come due 30 (thirty) days from the last day of each
month.
4.4. Any price changes for the product, shall be made at the commencement
of each Renewal Term and shall be notified by Just Ladies Fitness in
writing not less than thirty (30) days prior to the renewal date.
4.5. If any order is received earlier than prices are increased, the order
will be dispatched at the old prices, ie: price increase will not
effect outstanding orders
5. TERM AND TERMINATION.
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5.1. Terms. Unless otherwise terminated as provided herein, this Agreement
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shall be in force for an initial term of 2 years after the Effective
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Date (the "Initial Term). Absent 90 day written notice prior to the
end of the term of intent to discontinue parties' relationship this
agreement shall continue automatically for successive one year terms
under the same terms and conditions contained herein together with any
subsequent amendments hereto.
5.2. Termination. Either Party may terminate this Agreement:(a) if the other
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Party fails to fulfill any of its material obligations under this
Agreement; (b) if the other Party is in breach of Section 7
(Confidentiality); (c) if the other Party becomes insolvent or admits
in writing its inability to pay debts as they mature.
5.3. Effect of Termination. Upon termination of this Agreement for any
reason, each Party shall remain liable for those obligations that
accrued prior to the date of such termination; provided, however, that
nothing herein shall be construed to obligate Just Ladies Fitness to
offer or supply Products and Services to Fitness Xpress after the
termination of this Agreement.
6. SURVIVAL. The following provisions shall survive the expiration or
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termination, for any reason, of this Agreement: (Subscriber
Information), (Charges and Billing Statements); (Term and
Termination); (Confidentiality); (Warranties); (Intellectual Property);
(Indemnification); (Limitation of Liability); (General Provisions).
7. CONFIDENTIALITY.
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7.1. All information disclosed to the other party shall be deemed
confidential and proprietary (hereinafter referred to as "Proprietary
Information"). Such information includes, but is not limited to, trade
secrets, technical specifications, processes, functional descriptions,
development plans, design information, customer lists, pricing and
financial information..
7.2. Each party agrees to use the Proprietary Information received from the
other party only for the purposes of analyzing the business
arrangement between the parties in accordance with this Agreement.
7.3. It is agreed that all Proprietary Information shall be retained by the
receiving party in a secure place with access limited to the receiving
party's employees or agents who need to know such information for
purposes of this Agreement.
7.4. All Proprietary Information, unless otherwise specified in writing,
shall remain the property of the disclosing party. Such information
shall be used by the receiving party only for the purpose set forth in
this Agreement.
7.5. Exceptions to confidentiality:
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7.5.1. Published information in the public domain.
8. WARRANTIES.
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8.1. Authorization. Each Party represents and warrants to the other Party
that the execution and delivery of this Agreement and the performance
of such Party's obligations under this Agreement have been duly
authorized, and that the Agreement is a valid and binding agreement,
enforceable in accordance with its terms.
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9. INTELLECTUAL PROPERTY. Nothing in this Agreement shall be construed
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to transfer any right title or interest in Just Ladies Fitness Software
designs, inventions, copyrights, trade secrets, trade names or other
intellectual property.
10. INDEMNIFICATION.
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10.1. Each Party ("Indemnitor") will defend, indemnify and hold harmless the
other Party and such Party's affiliates, directors, officers,
employees, independent contractors, consultants, shareholders and
customers from and against any claim, loss, damage, and expense
resulting from acts or omissions arising out of or in connection with
this Agreement.
10.2. Just Ladies Fitness shall indemnify and hold harmless Fitness Xpress
from and against any and all claims, expenses, judgments, liabilities,
damages or losses and expenses, and shall defend all third-party
actions and proceedings arising from any use, infringement or alleged
infringement by Just Ladies Fitness of any trade secret, or other
intellectual property right of any third party, to the extent such
infringement or alleged infringement is caused solely by Just Ladies
Fitness.
11. LIMITATION OF LIABILITY. Except for damages arising under SECTION
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(CONFIDENTIALITY) or SECTION (indemnification), in no event shall EITHER
PARTY be liable TO THE OTHER PARTY for any incidental, indirect, special,
punitive, consequential or similar damages of any kind including without
limitation, loss of profits, loss oF business or interruption of business,
whether sUCh liability is predicated on contract, strict liability or any
other theory WIthout regard to whether sUCh party has been advised of the
possibility of sUCh damages.
12. GENERAL PROVISIONS
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12.1. Monetary Values. All monetary values in the Agreement refer to U.S.
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12.2. Assignment. Just Ladies Fitness may not assign its rights or
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12.3. Governing Law. This Agreement will be interpreted in accordance with
------------- the laws of the Province of British Columbia.
12.4. Notices. All notices or other between Just Ladies Fitness and Fitness
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Xpress under this Agreement shall be in writing and delivered
personally, sent by confirmed facsimile, by confirmed e-mail, by
certified mail, postage prepaid and return receipt requested.
12.5. Independent Corporations. Both parties are independent corporations
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acting for their own accounts and neither is authorized to bind, or
attempt to bind, the other to any contract, general warranty,
covenant or undertaking of any nature whatsoever on behalf of the
other party unless authorized in writing.
12.6. Entire Agreement And Modifications. This Agreement together with any
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appendices, exhibits and attachments constitute the entire agreement
between the Parties with regard to the subject matte. This Agreement
may only be modified by a written instrument duly executed by each
party.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the date first written above.
Just Ladies Fitness, Ltd. Fitness Xpress, Inc.
Signature:/s/ Xxxxx Xxxxxx Signature: /s/ Xxx Xxxx
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Printed Name: Xxxxx Xxxxxx Printed Name:Xxx Xxxx
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Title: Pres/CEO Title: President
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Date: July 13, 2006 Date: July 13, 2006
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