INTERMATIC CORPORATION EXCLUSIVE SALES AND DISTRIBUTION AGREEMENT
INTERMATIC
CORPORATION
THIS
EXCLUSIVE SALES AND DISTRIBUTION AGREEMENT (the “Agreement”) is made this 16 day
of March, 2006, by and between SOLAR NIGHT INDUSTRIES, INC., a Missouri
corporation, with its principal place of business at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as the “Company” and INTERMATIC
CORPORATION, a Nevada corporation, with its principal place of business at
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as
“Distributor”).
RECITALS:
WHEREAS,
the Company is in the business of developing, manufacturing and selling products
incorporating solar electrical generating capacity, including “Solar Flower
Products” (as defined herein) for sale at both the wholesale and retail market
levels; and
WHEREAS,
Distributor currently manufactures and sells products in the solar industry
and
is qualified to distribute the Company’s Solar Flower Products, and other
products developed by the Company, and Distributor has sufficient knowledge
of
the Company’s products to do so. Nothing in this agreement shall require
Distributor to pay Company for any of Distributors existing products or any
new
products Distributor develops independently from Company; and
WHEREAS,
the Company desires to appoint Distributor as Company’s exclusive Distributor
and Seller of the Product, subject to certain exceptions as specifically set
forth herein; and
WHEREAS,
both the Company and Distributor have determined that it is in their best
interests to enter into this Agreement in order to permit Distributor to exploit
various markets in which it has prior experience for purposes of increasing
the
distribution and sale of the Company’s Product.
IN
CONSIDERATION of the premises, mutual covenants of the parties, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the Company and Distributor
hereby agree as follows:
1. Definitions
The
following words shall have the following meanings when used in this
Agreement:
1.1 “Product”
shall mean the Company’s existing and future “solar flower products” which shall
be offered for sale to Distributor by the Company, and as changed from time
to
time, which are initially set forth in Schedule A, attached hereto.
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1.2 “Solar
Flower Products” shall mean a low voltage outdoor solar light product in the
nature of a flower and stem which may contain either one flower or multiple
flowers on a stem or stems powered by a solar panel connected to a AA or AAA
battery, or similar products. “Solar Flower Products” shall also include “new or
additional “Solar Flower Products” developed by the Company as defined in
Section 5 of this Agreement.
1.3 “Non-Flower
Solar Products” shall mean all solar products developed or acquired by the
Company, except those that are “Solar Flower Products”, that incorporate low
voltage lighting powered by a solar panel.
1.4 “Prices”
shall mean the Company’s then current prices for the Product offered for sale to
Distributor under this Agreement and set forth in Schedule B, attached hereto.
1.5 “Proprietary
Information” shall mean all ideas and concepts relating to the Company’s or to
the Distributor’s Products, including, without limitation, patents, trade
secrets, plans, specifications, blueprints, prototypes, working models,
production models and marketing plans.
1.6 “Purchase
Order” shall mean any document received by the Company or the Company’s “house
factory” located in China from Distributor requesting Product.
1.7 “Terms
and Conditions” shall mean the Distributor’s standard international terms and
conditions, as may be amended from time to time.
1.8 “Territory”
shall mean the entire world.
1.9 Except
as
set forth in paragraph 9.4, “Trademarks” shall mean all trademarks, service
marks and trade names owned by the Company, which Distributor is licensed to
use
as set forth in Schedule C of this Agreement.
1.10 “Factory
Cost” shall mean the actual costs incurred by the Company’s “house factory” in
China for labor and material plus said factory’s profit.
2. Appointment
Subject
to the terms herein, the Company hereby appoints to the Distributor the
exclusive worldwide right to market, sell and distribute the Product in the
Territory. Distributor hereby agrees to use its best efforts and agrees to
devote sufficient resources to developing sales in accordance with this
Agreement.
3. Acceptance
of Appointment
Distributor
hereby accepts its appointment as the Company’s exclusive worldwide marketer,
seller and distributor with the exclusive right to sell the Product in the
Territory.
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4. Duties
of Company
In
satisfaction of its duties under this Agreement, Company shall undertake the
following duties in a professional manner to the satisfaction of the Company:
4.1 Maintain
adequate inventories and manufacturing capability to fulfill Company’s
needs;
4.2 Provide
technically qualified employees knowledgeable as to the Product;
4.3 Notify
the Distributor immediately of any threatened and/or actual legal action against
the Company or Distributor regarding the Product;
4.4 Comply
with all applicable material China, United States, federal, provincial, and
local laws, ordinances, and regulations in connection with Company’s performance
of this Agreement including but not limited to the Foreign Corrupt Practices
Act
and all United States import laws, and all applicable trade regulations,
ordinances, laws and statutes;
4.5 Obtain
all material licenses, permits, government approvals, customs duties, and any
and all other documents or payments, which are required to be executed and
paid
in connection with the lawful sale in, shipment to, and installation of the
Product in the Territory.
5. Agreement
of Purchase and Sale; Additional Rights of Distributor
5.1
Sale
and Purchase.
The
Company agrees to sell to Distributor and Distributor agrees to purchase from
the Company the Product subject to the terms and conditions set forth in this
Agreement.
5.2 Distributor’s
Exclusive Rights.
In
addition to the other rights granted to Distributor under the terms of this
Agreement, Distributor shall automatically have the exclusive worldwide rights
for the marketing, sale, and distribution of all new or additional Solar Flower
Products developed by the Company throughout the term of this Agreement
consistent with the extent of such rights as apply to the other Solar Flower
Products being sold by Distributor. In the event that such new or additional
solar flower-type products are available for sale and distribution, then
Distributor shall have the right to sell and distribute those solar flower-type
products in accordance with the terms of this Agreement, and shall pay Company
for said solar flower products in accordance with Price Formulas on Schedule
B
attached hereto.
5.3 Right
of First Refusal; All Other Non-Flower Solar Products.
The
Company does hereby grant to Distributor a right of first refusal as to the
marketing, sale, and distribution of all other Non-Flower Solar Products
developed and/or manufactured by the Company at any time during the term of
this
Agreement whereby the Distributor, upon the exercise of said right of first
refusal shall have the exclusive worldwide rights to market, sell and distribute
said Non-Flower Solar Products in accordance with the terms of this Agreement
and shall pay Company for said products in accordance with Pricing Formulas
as
set forth on Schedule B attached hereto.
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5.3.1 Exercise
of Right of First Refusal.
In the
event that Company does develop a Non-Flower Solar Product or products, then
the
Company shall provide notice of said product to Distributor in writing which
notice shall be accompanied by prototypes, samples, any other literature
necessary for the Distributor to evaluate the product for purposes of
determining whether the Distributor desires to exercise its right of first
refusal and the minimum sales requirements for such product.
5.3.2 In
the
event that Distributor desires to exercise a right of first refusal hereunder,
it shall provide written notice to the Company within thirty (30) days of the
receipt of notice from the Company as set forth in subparagraph 5.3.1 herein.
During said thirty (30) day period, the Company shall not be permitted to
disclose and/or entertain offers from any other Distributor, or other entity,
for the purposes of marketing, selling, and/or distributing said new or
additional “non-flower” solar product.
5.3.3 In
the
event that Distributor does exercise its right of first refusal for any
Non-Flower Solar Product as set forth herein, then said right shall include
the
exclusive worldwide rights to market, sell and distribute said new or additional
Non-Flower Solar Product subject to the minimum sales requirements for such
product.
5.3.4 In
the
event of Distributor’s failure to provide written notice of its intent to
exercise its right of first refusal as set forth herein, then, upon the earlier
of written notice that Distributor does not desire to exercise its right of
first refusal or the expiration of said thirty (30) day period, then said new
or
additional Non-Flower Solar Product shall not be subject to the terms of this
Agreement, and the Company shall have the right to market, sell, or distribute
said product as it desires.
5.4 Cost
Reduction Efforts.
5.4.1 The
Company does hereby grant to Distributor the right to assist the Company with
efforts to reduce the costs of manufacturing the Products which are the subject
of this Agreement. The Company shall permit Distributor to confer and meet
with
Company’s personnel and the personnel at Company’s house factory in China on a
regular basis for the purposes of permitting cost reduction efforts as set
forth
herein.
5.4.2 In
the
event that the Distributor and/or the Company are successful in obtaining and
implementing any cost reductions, said cost reductions shall not alter or modify
any of the pricing formulas set forth on Schedule B attached
hereto.
5.5 Exclusive
Manufacturing Period.
Notwithstanding anything to the contrary contained in this Agreement, on the
execution of this Agreement and for eighteen (18) months thereafter, the Company
shall have the exclusive rights to manufacture the Products which are the
subject of this Agreement whereby the Distributor shall not have the right
to
manufacture those Products or cause them to be manufactured at the Distributor’s
house factory in China or any other factory, subject to the Distributor’s rights
in the event of a default by the Company as to timely delivery and/or quality
control set forth below.
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5.6 Failure
to Deliver/Quality Control Penalty.
In the
event that at any time during the term of this Agreement the Company is unable
or unwilling to deliver to the Distributor on a timely basis in accordance
with
the terms of this Agreement, the Products ordered by Distributor from time
to
time, or at any time during the term of this Agreement, the quality of said
Products does not comply with the specifications and standards agreed to by
and
between the Distributor and the Company, then the Distributor shall be permitted
to manufacture or cause to be manufactured said Products at a facility of its
choice. In the event of the Company’s default as set forth in this subsection,
there shall be imposed upon the Company a penalty in the nature of an adjustment
to the monies to be paid by the Distributor to the Company for said Products,
and thereafter the Distributor shall pay the Company in accordance with Payment
Formula No. Four (4) as set forth in Schedule B attached hereto.
5.7 Distributor
Rights to Manufacture After Eighteen Months.
Notwithstanding anything to the contrary contained herein after the expiration
of the eighteen (18) month exclusive manufacturing period set forth in
subsection 5.5 above, the Distributor shall have the right to manufacture the
Products which are the subject of this Agreement at any facility it desires,
including Distributor’s house factory located in China, and thereafter, the
Distributor shall pay the Company for the Products in accordance with Price
Formula No. Five (5) set forth on Schedule B attached hereto.
5.8 Shipping
Terms.
The
Company shall ship or cause to be shipped all products sold under this Agreement
F.O.B. Port.
6. Prices
Distributor
shall pay the Company the Prices for the Product purchased under this Agreement
as set forth in Schedule B, attached hereto. All Prices as set forth on Schedule
B shall remain in full force and effect during the term or any extended term
of
this Agreement.
7. Purchase
Orders
Distributor
may purchase the Product by submitting a Purchase Order to the Company in
substantially the same form as Schedule D attached hereto. All Purchase Orders
must be accepted in writing by the Company or its “house factory” in China and
are not valid or effective until so accepted. In the event that the Company
fails to acknowledge and accept the Purchase Order within five (5) calendar
days, the Purchase Order is deemed accepted.
In
the
event any Purchase Order contains terms which are in addition to or in conflict
with the terms of this Agreement, the terms of the Purchase Order shall
control.
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8. Delivery
of Order/Net 30/Factory Terms
8.1 Shipping
Schedule.
After
the Company has accepted the Purchase Order, the Company will use its best
efforts, subject to Section 26 of this Agreement entitled “Force Majeure,” to
ship any orders received from Distributor within 45 calendar days after
acceptance of the Purchase Order. All invoices shall be payable net 30 days
from
date of shipment.
8.2 Factory
Payment Terms.
Notwithstanding anything to the contrary contained herein, Distributor shall
have the right to negotiate its own payment terms in regard to any payments
required to be made by Distributor directly to the Company’s “house factory” in
China, or Distributor’s house factory in China, or any other factory used by the
Distributor as the case may be.
9. Company’s
Rights to Sell and Distribute Distributor’s Products.
9.1 Distributor’s
Products Availability.
Throughout the term of this Agreement, the Distributor shall make its own
Products available to the Company for sale and distribution by the Company,
but
only in accordance with the terms of this Agreement.
9.2 Pricing.
Distributor shall sell its Products to the Company at its standard pricing
and
upon its standard terms and conditions.
9.3 Company
Limited to Internet Sales.
Notwithstanding anything to the contrary contained in this Agreement, the
Company’s right to market, sell, and distribute Distributor’s Products shall be
limited to said activities via the Internet and to Internet accounts only.
9.4 Company’s
Use of Distributor Trademark.
9.4.1 Grant
of Right to Use.
Distributor hereby grants to the Company the non-exclusive right to use its
trademark “Malibu” or “Malibu Lights” only during the term of this Agreement,
and only in accordance with the terms and provisions of this Agreement. Said
use
shall be limited to placement of said trademark on the Products which are the
subject of this Agreement or which become the subject of this Agreement, and
only so long as this Agreement remains in full force and effect.
9.4.2 Ownership
of Trademark.
The
Company hereby acknowledges Distributor’s exclusive right, title and interest in
and to the “Malibu” and “Malibu Lights” trademarks. Nothing contained in this
Agreement shall be construed as conveying to the Company any right, title or
interest in or to any of the trademarks other than an express and non-exclusive
right to a permissive use thereof in connection with the promotion of the
Products as set forth herein.
9.4.3 Cooperation.
The
Company shall cooperate to the fullest extent possible with Distributor to
take
such actions as the Distributor in its sole discretion may consider necessary
to
protect any of said trademarks.
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9.4.4 Prior
Consent.
The
Company hereby agrees and warrants that the Company will not incorporate all
or
any portion of the trademarks into the Company’s corporate name or trade names
except in conjunction with Products which are the subject of this Agreement,
and
only with the prior written consent of Distributor.
10. Term/Termination
Without Cause.
10.1 Initial
Term and Renewal Term.
This
Agreement shall become effective upon its execution by both Distributor and
the
Company and shall remain in full force and effect for an initial term of three
(3) years (Initial Term). Thereafter, this Agreement shall be automatically
renewable every two (2) years (Renewal Term), unless at least 120 days prior
to
the expiration of any Renewal Term, Distributor provides written notice to
the
Company of its intent to terminate the Agreement, whereupon said Agreement
will
terminate 120 days thereafter.
10.2 Termination/Cooperation.
In the
event of a termination as set forth herein, the parties agree to cooperate
in
winding up their affairs and obligations as to each other.
11. Termination
With Cause
11.1 Termination
- For Cause
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11.1.1
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Either
Distributor or the Company may at its option immediately terminate
this
Agreement by giving written notice thereof to the other party in
the event
of the happening of any of the
following:
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| 11.1.1A |
If
the other party becomes insolvent, or a petition in bankruptcy is
filed,
or any similar relief is filed by or against the other party, or
a
receiver is appointed with respect to any of the assets of the other
party, or a liquidation proceeding is commenced by or against the
other
party; or
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| 11.1.1B |
Failure
to correct or cure any material breach by the other party of any
covenant
or obligation under this Agreement hereunder within thirty (30) calendar
days after receipt by the other party of a written notice from such
party
specifying such breach.
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11.1.2
|
In
the event that all or a controlling interest in the Company, or a
parent
of Company, is acquired by an unrelated third party by merger, acquisition
or provide or public purchase of securities or assets, the Distributor
shall have the right to terminate this Agreement within forty-five
(45)
days written notice.
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11.1.3
|
The
Distributor shall have the right to immediately terminate this Agreement
without prior notice for “material cause,” which shall be defined for this
purpose as: gross inattention to or neglect of, or gross negligence
or
incompetence in the performance by Company of its duties under the
terms
and provisions of this Agreement; or dishonesty, fraud or other acts
of
criminal nature involving Company or any of its affiliates, directors,
officers, employees, agents, or
representatives.
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|
11.1.4
|
Special
Right of Distributor to Terminate/Third Party
Claims
|
Notwithstanding
anything to the contrary contained herein, the Distributor shall have the right
to immediately terminate this Agreement in the event any claim, cause of action,
demand, or other action, is brought by or on behalf of Company, or any
representatives, employees, agents, affiliates, successors or assigns of Company
against Distributor and/or the Company at any time that this Agreement is in
force. This right to terminate shall not be contingent upon the facts of any
claim brought by said entities or the cause of action brought by said entities,
but rather, the parties hereto agree that the right of Distributor to terminate
as set forth in this section, shall arise notwithstanding the subject matter
of
the claim or action brought by said entity or entities.
12. Effect
of Termination and/or Expiration
Upon
the
termination or expiration of this Agreement, Distributor shall remain
responsible for any product inventory in its possession at the time of said
termination or expiration, and any such Product in the process of being
manufactured at the time of termination or expiration.
13. Marketing
Distributor
shall be solely responsible for the marketing, publishing of literature,
packaging, displays and general merchandising of the Product. The Distributor
shall retain control over the content of all promotional material and
advertisements created by Distributor.
14. Reporting
and Forecasting
14.1 Meeting.
Distributor and the Company will meet at mutually agreeable times to review
sales made by Distributor since the previous meeting and review Distributor’s
forecasted sales for the next twelve (12) month period. Each party shall bear
its own expenses to attend such meetings. The first such meeting shall be held
in Spring Grove, Illinois. Thereafter, such meetings will alternate locations
between St. Louis, Missouri, and Spring Grove, Illinois, at the sole discretion
of the Distributor.
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14.2 Forecasts.
In
order to facilitate production, scheduling, and delivery of the Product
Distributor agrees to provide the Company and/or its “house factory” in China
within ninety (90) calendar days from the date of this Agreement and quarterly
thereafter during the term of this Agreement and any extension herein, a
nonbinding forecast for the following twelve (12) months of the Distributor’s
anticipated requirements for the purchase of the Product hereunder.
15. Special
Provisions as to Company’s Current Inventory.
15.1 Current
Inventory Volume.
As of
the date of execution of this Agreement, the Company does represent that it
currently has approximately 15,000 units of the Product which is the subject
of
this Agreement in stock.
15.2 The
parties hereto agree that the Company shall have the right to sell, via the
Internet only, and Catalog companies with express permission from the
Distributor, and
to
other Buyers with the prior written consent of Distributor, all of its current
inventory under its own name; or, in the alternative, upon written notice to
the
Distributor, the Distributor will buy said inventory from the Company in
accordance with Pricing Formulas set forth on Schedule B attached
hereto.
16. Distributor’s
Option as to New Markets.
16.1 Notice
of Intent to Sell. In
the
event that the Company desires to sell to new markets or a customer base that
is
not the normal customer base of Distributor, the Company shall give the
Distributor written notice of said desire which written notice shall describe
the market and detail the Company’s intent and plans as to how it will market,
sell and distribute its Products to that new customer base or market.
16.2 Distributor’s
Option.
Upon
receipt of the notice of intent to sell issued by the Company, the Distributor
shall have thirty (30) days in which to express an interest to sell to the
subject new market or customer base in writing to the Company; and
16.3 Option
to Commit.
Upon
the expiration of the thirty (30) day period in which the Distributor is to
express its interest, the Distributor shall then have an additional thirty
(30)
days in which to fully commit to sell the Products to the new market or customer
base which commitment shall be stated in the form of a written notice to the
Company within said second thirty (30) day period. In the event of the
Distributor’s failure or inability to issue its notice to commit, then the
Company shall be free to sell its products to said new customer base or new
market.
16.4 Distributors
Current and New Products.
Notwithstanding anything to the contrary contained in this Agreement,
Distributor shall have no obligations whatsoever to pay Company any fees,
royalties, or other sums of money in regard to Products already existing and
owned or controlled by Distributor as of the date of this Agreement, or any
new
or additional Products developed by Distributor subsequent to the date of
Agreement.
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17. Quality
Assurance and Control
The
Company shall perform all services and manufacture the Product in a professional
and workmanlike manner, consistent with industry quality standards and shall
maintain an adequate and competent staff to achieve such standards. Test data
and test reports on the Product shall be made available by the Company to the
Distributor on reasonable request. Throughout the term or any Renewal Term
of
this Agreement, the Distributor shall have regular access to the Company’s
manufacturing facility, including its “house factory” located in China to assure
quality standards are being maintained and to implement quality control systems
in regard thereto.
18. Disclaimer
of Partnership or Agency
The
relationship between the Company and the Distributor under this Agreement is
solely that of independent seller and purchaser. Each of the parties is in
no
way the legal representative or agent of the other party for any purpose and
shall have no power to assume or create, in writing or otherwise, any obligation
or responsibility of any kind, express or implied, in the name of or on behalf
of the other party.
19. Indemnification
19.1
Company
will indemnify, defend and hold the Distributor harmless from any and all
liabilities, claims, losses, obligations, expenses (including without limitation
reasonable attorneys’ fees) and costs arising in connection with any lawsuit,
proceeding or other action arising out of (i) the operation of Company’s
business or (ii) related to any claim by a third party based, in whole or in
part, on Company’s manufacture of the Product, including any fines or penalties
arising out of or in any way related to any United States trade regulations,
export or import laws. The activities of any Company’s employees, agents, or
independent contractors, will be considered activities of the Company for
purposes of this section. The Distributor will have the right, but not the
obligation, to assume the defense of any such lawsuit, proceeding or action.
The
Company and Distributor will each give the other prompt notice of any such
claim, lawsuit, proceeding or action.
19.2 Patent
Indemnity.
Company
shall manufacture or cause to be manufactured the Product under this Agreement,
excluding any products purchased by Company from Distributor, so that the sale,
use or lease of any such item shall not infringe any United States Patent(s),
U.S. copyrights or other U.S Proprietary right(s). Each Party agrees to promptly
report to the other any unexpired patents or other proprietary rights of third
Parties which may be infringed by the manufacture, use, lease, or sale of the
Equipment. Company at its own expenses, shall indemnify and hold Distributor,
its directors, officers, employees, agents, contractors, or customers or
assignees harmless from any loss, damage liabilities or expense including
attorney’s fees on account of any claims, and shall defend any suit and dispose
of any claim or other proceedings based on an allegation that the manufacture
of
the Product in the performance of this Agreement or the use, lease, or sale
of
any Product delivered under this Agreement, infringes any United States Patent
or other U.S. proprietary rights; and Company shall pay any royalties and other
costs related to the defense or settlement of such infringement claims), and
the
costs and damages, including attorneys fees, awarded as the result of any suit
based on such claim(s). Distributor shall promptly notify Company if any
infringement claim or action for which indemnification is sought and shall
give
Company any assistance and all information reasonably available to Distributor,
its directors, officers, employees, agents and contractors for the defense
of
such claims.
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If
the
manufacture of any Product under this Agreement, or the use, lease, or sale
of
such Product is enjoined as the result of a suit based on any claim of patent
infringement or violation of other proprietary rights for which supplier is
required to provide indemnification under this section, Company agrees to
utilize its best efforts (1) to negotiate a license or other Agreement with
claimant so that the item is no longer subject to such injunction, or (2) to
modify the Product suitably or substitute suitable alternative Product therefore
(subject to the approval of Distributor), which modified or substituted Product
is not subject to such injunction, and to extend the provisions of this
Paragraph 19. In the event that neither the foregoing alternatives can be
satisfactorily implemented, the Parties shall negotiate in good faith to
determine the action to be taken regarding continued Product production under
this Agreement.
20. Use
of the Company’s Trademarks
20.1 The
Company does hereby grant to Distributor the exclusive right to use the
trademarks set forth on Schedule C attached hereto in conjunction with the
marketing, sale and distribution of the Product pursuant to the terms of this
Agreement. The Company shall take all actions and obtain all registrations
diligently at its own expense in regard to said trademarks and will provide
the
Distributor with copies of all such applications and other documents upon filing
them and copies of all registrations upon receiving them in the event that
Distributor so requests them.
20.2 Nothing
contained in this Agreement shall be construed as conveying to Distributor
any
right, title or interest in or to any of the trademarks other than an express
and exclusive right to use them as set forth herein in connection with the
marketing, sale and distribution of the Product.
20.3 Distributor
shall cooperate with the Company to take such actions as the Company in its
sole
discretion may consider necessary to protect any of said trademarks but at
no
cost to Distributor.
20.4 The
Company hereby consents to the use by Distributor and the right of Distributor
to incorporate the trademarks or any portion of the trademarks into
Distributor’s trademarks or trade names, including but not limited to the trade
name “Malibu/Solar Night Flower”.
21. Force
Majeure
If
the
performance of the Company is made impossible by reason of any circumstances
beyond the Company’s reasonable control, including without limitation, fire,
explosion, power failure, acts of God, war, revolution, civil commotion, or
acts
of public enemies, any law, order, regulation, ordinance, or requirement of
any
government or legal body or any representative of any such government or legal
body, labor unrest, including without limitation, strikes, slowdowns, picketing
or boycotts, then the Company shall be excused from such performance on a
day-for-day basis to the extent of such interference, provided that the Company
shall use reasonable efforts to remove such causes of nonperformance.
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22. Entire
Agreement
This
Agreement, the schedules hereto and the documents referenced herein, constitute
the entire agreement between the parties hereto and there are no
representations, warranties, covenants or obligations except s set forth herein.
This Agreement supersedes al prior or contemporaneous agreements,
understandings, negotiations and discussions, written or oral, of the parties
hereto, relating to any transaction contemplated by this Agreement. Nothing
in
this Agreement is intended or shall be construed to confer upon or to give
any
person other than the parties hereto any rights or remedies under or by reason
of this Agreement.
23. Assignment
Company
shall not assign any interest in this Agreement without the prior written
consent of an authorized executive officer of the Distributor.
24. Governing
Law
The
rights and obligations of the parties under this Agreement shall be governed
by
the local, domestic law of the State of Illinois, U.S.A., including the
provisions of the Uniform Commercial Code and the parties hereto irrevocably
submit to the jurisdiction of the State of Illinois and venue in the Circuit
Court of ▇▇▇▇▇▇▇ County, Illinois, in any action brought by the parties hereto
concerning this Agreement or the performance thereof.
25. Waiver
Any
failure of the Company to enforce, at any time or for any period of time, any
of
the provisions under this Agreement shall not be construed as a waiver of the
right of the Company to enforce such provisions unless said waiver is in
writing, and signed by an authorized executive officer of the
Company.
26. Notices
Any
notice required or permitted to be given under this Agreement shall be sent
in
writing, by prepaid, certified, return receipt requested, first class air mail
to the respective party at the address below, or to such other address as each
party may hereafter specify in writing to the other, and sent via facsimile
at
the facsimile number set forth below.
12
| If to the Company: | INTERMATIC
CORPORATION
ATTN:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Intermatic
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
||
| Copy to: |
▇▇▇▇▇▇ ▇. ▇▇▇▇
ROTH,
MELEI, ▇▇▇▇▇▇▇▇, LTD.
▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
|
||
| If to Distributor: | SOLAR
NIGHT INDUSTRIES, INC.
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
||
| Copy to: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
|
||
27. Publications
Except
as
required by law or regulation, or as provided herein, no announcement, news
release, public statement, publication, or presentation relating to the
existence of this Agreement, the subject matter herein, or either party's
performance hereunder (collectively, a "Publication") shall be made without
the
other party's prior written approval. Each party agrees to submit each
Publication it proposes to make to the other party for purposes of such other
party's review, comment and approval. Each party further agrees to respond
as
promptly as reasonably practicable and agrees that it shall not unreasonably
withhold approval of such Publication. The parties agree that they shall use
reasonable efforts to coordinate the initial announcement or press release
relating to the existence of this Agreement so that such initial announcement
or
press release by each is made contemporaneously. The parties recognize that
researchers may publish research findings concerning the Products and that
neither Distributor nor the Company may have power to approve the contents
of
such publication even when Distributor and/or the Company participate in the
funding of such research.
28. Separability
of Provisions
Each
provision of this Agreement shall be considered separable and if for any reason
any provision or provisions herein are determined to be invalid or contrary
to
any existing or future law, such invalidity shall not impair the operation
of
this Agreement or affect those portions of this Agreement which are
valid.
13
29. Enumeration
and Headings
The
enumeration, headings and “Background” contained in this Agreement are for
convenience or reference only and are not intended to have any substantive
significance in interpreting this Agreement.
30. Survival
Distributor
recognizes and agrees that its obligations under Sections 19 and 20 of this
Agreement shall survive the termination of this Agreement and Distributor shall
be bound by such obligations after termination hereof.
31. Remedies
In
the
event Company breaches, or threatens to breach any of the covenants expressed
herein, the damages to the Distributor will be great and irreparable; therefore,
the Distributor may apply to a court of competent jurisdiction for injunctive
or
other equitable relief to restrain such breach or threat of breach, without
disentitling the Distributor from any other relief in either law or
equity.
14
IN
WITNESS WHEREOF, and intending to be legally bound, the undersigned parties
have
duly executed this Distribution Agreement under seal effective on the day and
year first written above.
| ATTEST: | COMPANY: |
| Solar Night Industries, Inc. | |
| _______________________________________ | By: _____________________________________ |
| Its Secretary | Its President |
| DISTRIBUTOR: | |
| Intermatic Incorporated | |
| _______________________________________ | By: _____________________________________ |
| Its Secretary | Its President |
|
▇▇▇▇▇▇
▇. ▇▇▇▇
ROTH,
MELEI, ▇▇▇▇▇▇▇▇, LTD.
▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
(815)
356-8000
|
rar\intermatic\nsi.distrib.agmt.03.16.06\nms
15