SALES AND MARKETING MANAGEMENT SERVICES AGREEMENT
THIS AGREEMENT dated March 11, 1999 between REMEDENT USA,
INC., an Arizona corporation, having its principal place of business at ▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ("Principal"), and DOUBLE EAGLE MARKET
DEVELOPMENT COMPANY, a California corporation, having its principal place of
business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Double Eagle").
Principal is in the business of manufacturing, marketing and
distributing Consumer Products and desires to secure the services of Double
Eagle, as described below, to provide sales and marketing management services
and to negotiate the sales of such products in Principal's name and for its
account. Accordingly, Principal and Double Eagle agree as follows:
1. Appointment. Subject to the terms and conditions of this
Agreement, a) Principal retains the services of Double Eagle and Double Eagle
agrees to provide sales material development and assessment (Stage 1), sales and
marketing management of the current brokers and accounts (Stage 2), and sales
and marketing management services (Stage 3) to support the Principal in the
development and expansion of Principal's sales beyond current accounts, as
described in the February 23, 1999 Proposal letter, attached hereto as Exhibit
"A", and b) Principal hereby appoints Double Eagle and Double Eagle agrees to
act as Principal's exclusive representative for soliciting wholesale orders for
the Products described in Exhibit "B" attached hereto ("Products") from existing
and prospective customers in the geographical area described in Exhibit "C"
attached hereto ("Territory").
2. Double Eagle's Efforts. Double Eagle shall use its best
efforts to solicit wholesale orders for the Products from the customers in the
Territory. Double Eagle shall employ, at its sole expense, a sufficient number
of salespersons to serve the customers in the Territory in a manner intended to
maximize Principal's sale of the Products to the customers in the Territory.
3. Double Eagle's Conduct. Double Eagle shall require its
salespersons to comply with Principal's standards for competency, business
ethics, courtesy, and service while soliciting wholesale orders for the Products
from the customers in the Territory. Double Eagle shall assure that its
salespersons do not engage in any conduct or participate in any activity which
is offensive to the standards of the general community for decency, morality, or
social propriety, likely to result in scandal, ridicule, or contempt for the
applicable salesperson, Double Eagle, Principal or its Products.
4. Wholesale Orders. All wholesale orders solicited by Double
Eagle shall be promptly submitted to Principal. The product descriptions, unit
prices, minimum order quantities, and other terms of sale applicable to each
wholesale order shall be set forth in writing by Principal. Each wholesale order
taken by Double Eagle shall be subject to Principal's confirmation in its sole
discretion.
5. Double Eagle's Management Fee and Sales Commissions. For
Stage 1, Principal shall provide Double Eagle a consultation fee of $10,000 plus
expenses. The consultation fee shall be paid 50% upon signing of this agreement
and 50% upon completion of Stage 1, as evidenced by the presentation of the
recommended sales material copy and account presentation. Out of pocket expenses
shall be pre-approved by Principal and paid as incurred. For Stage 2, Principal
shall pay to Double Eagle a commission of eleven percent (11%)--comprised of a
"Management Fee" of six percent (6%) and a five percent (5%) "Brokerage
Commission"--of Principal's net invoiced amount for all of the Products
delivered each month to the Customers in the Territory pursuant to wholesale
orders solicited by Double Eagle and accepted by Principal. For these purposes,
the term "net invoiced amount" shall mean the total invoiced amount less any and
all (a) sales taxes, (b) freight allowances and charges, (c) returned product
credits, (d) refunds, (e) rebates, (f) discounts, and (g) previously invoiced
amounts which have not bee paid in accordance with the terms of sale. Principal
shall guarantee a minimum management fee of $4,000 per month, offset either
partially or completely, by the 6% management fee commission earned on net
invoiced amount as described above. The minimum guarantee shall be due at the
beginning of the month, beginning with the month this agreement is signed.
Double Eagle's management fee commissions earned in excess of the minimum
guarantee and all brokerage commissions for each month shall be due and owing on
the 15th day of the following month. All travel expenses shall be pre-approved
by Principal and due and owing as incurred.
For Stage 3, Principal shall pay to Double Eagle a commission
of eleven percent (11%)--comprised of a "Management Fee" of six percent (6%) and
a five percent (5%) "Brokerage Commission"--of Principal's net invoiced amount
for all of the Products delivered each month to the Customers in the Territory
pursuant to wholesale orders solicited by Double Eagle and accepted by
Principal. For these purposes, the term "net invoiced amount" shall mean the
total invoiced amount less any and all (a) sales taxes, (b) freight allowances
and charges, (c) returned product credits, (d) refunds, (e) rebates, (f)
discounts, and (g) previously invoiced amounts which have not been paid in
accordance with the terms of sale. Principal shall guarantee a minimum
management fee of $6,000 per month, offset either partially or completely, by
the 6% management fee commission earned on net invoiced amount as described
above. The minimum guarantee shall be due at the beginning of the month,
beginning with the month this agreement is signed. Double Eagle's management fee
commissions earned in excess of the minimum guarantee and all brokerage
commissions for each month shall be due and owing on the 15th day of the
following month. All travel expenses shall be pre-approved by Principal and due
and owing as incurred.
6. Double Eagle's Business Expenses. Double Eagle shall be
solely responsible for all of its expenses not previously covered in section 5
or elsewhere in this Agreement for soliciting wholesale orders for the Products
from the customers in the Territory, including, without limitation, expenses for
employees, taxes, rent, telephone service, travel, entertainment, and office
supplies.
7. Principal's Reports. Principal shall provide to Double
Eagle a monthly report of all data and information used by Principal to
calculate Double Eagle's commission for the applicable month. The accuracy of
each such report shall be certified by Principal's Sales Manager-Products or his
designee. Principal shall provide to Double Eagle copies of all wholesale orders
for the Products solicited by Double Eagle and accepted by Principal.
8. Sales Materials and Advertising. Principal shall provide to
Double Eagle copies of brochures, flyers, promotional pieces pertaining to the
Products and other relevant selling materials which set forth Principal's
product descriptions, unit prices, minimum order quantities, and other terms of
sale for the Products ("Sales Materials") for distribution to the customers in
the Territory and use by Double Eagle during the term of this Agreement. From
time to time, Principal shall amend or revise the Sales Materials by delivery of
such new pages, replacement pages, addenda, or revised copies to Double Eagle as
Principal shall determine to be appropriate. Principal shall advertise and
promote the Products in such manner as it shall determine to be appropriate.
Double Eagle shall not advertise or promote the Products other than by the
distribution of such promotional pieces and by written correspondence, telephone
conversations, and personal meetings with the buyers and other employees of the
customers in the Territory.
9. Double Eagle's Incidental Duties. Double Eagle shall
provide to Principal written reports of the (a) efforts of Double Eagle to
solicit wholesale orders for the Products from the Customers in the Territory,
(b) creditworthiness of the Customers in the Territory, and (c) efforts of
competitors to solicit wholesale orders from the Customers in the Territory. The
form and frequency of such reports shall be as reasonably specified by
Principal. Double Eagle shall provide to Principal prompt written notice of any
and all complaints pertaining to the Products which come to the attention of
Double Eagle without expressing an oral or written opinion pertaining to such
complaints to any third party.
10. Relationship of Parties. Double Eagle shall not represent
or hold itself out as an agent, legal representative, partner, subsidiary, joint
venture partner, or employee of Principal. Double Eagle shall have no right or
power to bind or obligate Principal, and shall not bind or obligate Principal,
in any way, manner, or thing whatsoever, nor represent that he has any right to
do so.
11. Term of Agreement. The term of this Agreement shall
commence on the date of its execution by Principal and shall expire at midnight
six months later, unless terminated sooner as provided elsewhere in this
Agreement. Thereafter, the term of this Agreement shall be automatically
extended for successive periods of six months each unless either party gives
written notice that it does not desire to have the term so extended not later
than sixty (60) days prior to the end of any specific six-month period.
12. Termination. Principal shall have the right to terminate
the term of this Agreement for cause by written notice to Double Eagle if Double
Eagle (a) is convicted of any felony or any misdemeanor involving fraud or moral
turpitude, or (b) defaults in the performance of any obligation pursuant to this
Agreement or violates any term or condition of this Agreement and fails to cure
such default or violation within the time set forth in Principal's written
notice to cure the same. In the case of termination, brokers established by
Double Eagle shall then report directly to the Principal and Double Eagle will
provide an easy transition.
13. Assignment. Double Eagle shall not assign, transfer, nor
encumber this Agreement, or any right or interest herein or hereunder, nor
suffer or permit any such assignment, transfer, or encumbrance to occur by
operation of law without prior written consent of Principal.
14. Covenant Not To Compete. During the term of this Agreement
Double Eagle shall not solicit wholesale orders for any competitive product
which is identical or substantially similar to any Consumer Product from any
Customer in the Territory. This covenant not to compete shall be construed
separately and independently of any other provisions of this Agreement and the
existence of any claim or cause of action which Double Eagle might have against
Principal shall not constitute a defense to its enforcement.
15. Waivers. The failure of Principal to exercise any right,
power, or option given to it hereunder or to insist upon strict compliance with
the terms hereof shall not constitute a waiver of the terms and conditions of
this Agreement with respect to any other subsequent breach thereof nor a waiver
of its right at any time thereafter to require exact and strict compliance with
all the terms and conditions hereof. Principal's rights and remedies pursuant to
this Agreement are cumulative to any other rights or remedies which may be
granted by law.
16. Applicable Law. This Agreement, and the rights and
obligations of the parties hereto, shall be construed under and in accordance
with the laws of the State of California.
17. Arbitration. Principal and Double Eagle shall attempt to
resolve any and all disputes arising out of or relating to this Agreement by
amicable negotiations. If any such dispute cannot be resolved within thirty (30)
days after either party gives a written notice to the other party initiating
negotiations pertaining to such dispute, the parties shall submit such dispute
to arbitration in Long Beach, CA in accordance with the Commercial Arbitration
Rules of the American Arbitration Association then in force. The award by the
arbitrators shall be binding on the parties and enforceable by any court having
jurisdiction.
18. Notices. Any notice required to be given hereunder shall
be given in writing by personal delivery, or by certified or registered mail,
return receipt requested, directed to the party at its last known address.
19. Severability. If any provision of this Agreement is
declared invalid or inoperable by any court or other governmental authority of
competent jurisdiction, such finding shall not invalidate the remainder of this
Agreement.
20. Parties Bound. This Agreement shall be binding on and
inure to the benefit of Principal, including its successors and assigns, and
Double Eagle, including its successors and assigns.
21. Amendment, Entire Agreement. This Agreement constitutes
the entire agreement and understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior negotiations, commitments,
representations, and undertakings of the parties with respect to such subject
matter. This Agreement shall not be modified except by a writing signed by an
officer of Principal and by an officer of Double Eagle.
22. Sixty Day Addendum. The parties agree that the
relationship between the parties will be more clearly defined sixty days after
signing this contract. The duties of both parties will be added to this contract
as an Addendum at that time.
The parties hereto have duly executed, sealed and delivered
this Agreement in duplicate on the day and year first above written.
REMEDENT USA, INC.
By:
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Title:
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"Principal"
DOUBLE EAGLE MARKET DEVELOPMENT COMPANY
By:
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Title:
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"Double Eagle"
EXHIBIT A
Proposal letter of February 23, 1999 from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
EXHIBIT B
Principal authorizes Double Eagle to represent the following list of Products
for the purposes of soliciting wholesale orders:
Products
Oral health care products
EXHIBIT C
Principal authorizes Double Eagle to represent Products in the following
Territory for Customers in the listed classes of trade:
Territory
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The United States of America and all U.S. military installations worldwide
Canada
Customers
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The Customers in the Territory include, but are not limited to, those designated
as follows:
Grocery, Club Store, Mass Merchandiser, Convenience, Liquor, Health Food,
Military, Drug, Hardware, and Food Service