LICENSING AND DISTRIBUTOR AGREEMENT
Exhibit
99.1
LICENSING
AND DISTRIBUTOR AGREEMENT
This
Definitive Licensing and Distributorship Agreement entered into on this day
of
January 21st, 2008 by and between Artech Recyclingtechnik GmbH, (the "Company")
Magnum D'Or Resources, Inc., the ("Distributorship").
WITNESSETH:
In
consideration of the mutual premises herein contained, the parties
hereto agree as follows:
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I.
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DEFINITIONS.
In
this agreement, the following definitions
apply:
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"Products"
shall mean the products set forth on Schedule "A" attached hereto and made
a
part hereof, as the same may be amended from time to time and no other products
of the Company, its subsidiaries or divisions.
"Patents"
shall mean the patents relating to the Products owned or controlled or licensed
by the Company.
"Trademarks"
shall mean the trademarks, trade names, symbols, labels and registrations,
applications for registrations and extensions of registration for any of the
foregoing owned or controlled by the Company.
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II.
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APPOINTMENT
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The
Distributorship is hereby appointed as a single Distributorship of exclusivity
for North America and China with the purpose of buying inventory, and
distributing by way of sale, the Products, for a period of Sixty (60) months
from the execution of this agreement, and on the terms hereinafter set forth.
When
dealing with the Products, the Distributorship shall act in its own name, at
its
own risk and for its own account.
Nothing
contained in the Agreement shall be construed to constitute the Distributorship
as an agent or legal representative for any purpose of the Company, or to give
the Distributorship or any of the officers, employees or agents of the
Distributorship the status of an agent or an employee of the Company, it being
intended hereby that the Company
and the Distributorship are and shall continue to be, throughout the term of
this Agreement, independent contractors.
This
Agreement shall not authorize the Distributorship to transact any business
in
the name of, for, or on account of the Company or to assume or grant any
obligation or responsibility binding upon the Company in any manner
whatsoever.
III.
PLACING
OF ORDERS AND PRICES
1.
The
Distributorship shall purchase from the Company such quantities of the products
as will enable the Distributorship to meet all reasonable demands for the
Products in their areas of operation. The Distributorship shall provide to
the
Company, on a quarterly basis, its “best estimate" rolling forecast showing its
anticipated requirements, by month, for the succeeding twelve (12) month
period.
2.
Prices
and discounts for the Products shall be the prices and discounts in effect
at
the time of shipment, unless otherwise indicated. The Company shall have the
right from time to time to change said prices and discounts with thirty (30)
days notice.
3.
While
the
Company agrees to accept and fill orders received from the Distributorship
within a reasonable period of time, the Company accepts no obligation to supply
in anyone-month more than one quantity of the Products, which the Company in
its
absolute discretion shall determine.
4.
All
orders shall be on forms provided by the Company and shall, at a minimum, set
forth the following:
a.
Products by type and quantity
b.
Price
c.
Shipping Location
d.
Method
of Shipping and any special requirements
e.
Requested shipping date
f.
Order
number
g.
Tax
exempt status of Distributorship or Customer, if any
5.
Upon
placing an order, the Distributorship shall pay Fifty Percent (50%) of the
order. The Distributorship may apply for Company credit and be subject to the
terms and conditions of the credit agreement.
6.
The
balance shall be paid Net 30 from the date of delivery of the order, subject
to
credit approval.
7.
An
order
shall be deemed filled when the Products are picked up from the distribution
facility. Title and risk of loss or damage to the Products shall pass to the
Distributorship when the Products are picked up at the distribution facility.
The Distributorship shall bear all costs for the delivery of the Products from
the distribution facility,
unless otherwise agreed to in writing between the Company and the
Distributorship.
IV. Marketing
1.
The
Distributorship shall use its best efforts to introduce, sell, and at all times
and at its expense, actively promote the sale of the Products (Distributorship
may be eligible for Manufacturers Co-Op Program). This provision is of the
essence of this Agreement and the basis on which the Company has consented
to
enter into this Agreement.
The
Distributorship agrees to purchase not less than “to be determined" of the
Products during each twelve (12) month period (“Minimum Commitment") and further
agrees to maintain the minimum inventory of “to be determined" of the Products
(“Minimum Inventory"). In the event the Distributorship does not achieve the
Minimum Commitment or maintain the minimum inventory, then, at the option of
the
Company, the Company may, in its sole discretion, treat the same as a breach
of
this Agreement and exercise its rights to terminate this agreement.
2. The
Company makes no promises, representations, warranties or guaranties with
respect to the Products except as from time to time expressly set fourth in
any
of the sales literature or other documents executed and supplied by the Company
to the Distributorship. In selling the Products the Distributorship will not
make any promises, representations, warranties or guaranties with reference
to
the Products except as are consistent with those expressly set forth in said
sales literature or other documents or as is otherwise expressly authorized
by
the Company in writing. In no event shall any promises, representations,
warranties or guaranties of the Company be implied unless required by applicable
law.
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V.
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TERMS
AND CONDITIONS.
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All
sales
of the Products to the Distributorship shall be subject to any and all terms
and
conditions of the Company, relating to said Products, which terms and conditions
shall be
subject
to change by the Company with thirty (30) days prior notice.
No
terms
or conditions of the Distributorship's purchase order (whether printed, stamped,
typed or written), except those specifying the quantity and character of the
Products ordered, the price, shipment invoice information and shipping
instructions, shall be applicable to such sales.
VI
. DUTIES
OF THE DISTRIBUTORSHIP.
The
Distributorship will, at all times during the term of this Agreement, observe
and perform the terms and conditions set out in this Agreement.
The
Distributorship will not alter, obscure, remove, conceal or otherwise interfere
with any Patents, Trademarks, markings or other indication of the course of
origin of goods, which may be placed on Products by the Company.
The
Distributorship shall keep the Company constantly informed of the course of
the
business of the Products and promptly bring to the notice of the Company any
information which it now has or may be received by it in the future which is
likely to be of interest, use, or benefit to the Company in relation to the
marketing of the Products.
The
Distributorship shall keep the Company fully informed of any change in the
capital structure or management of the Distributorship or business.
The
Distributorship shall, from time to time upon the request of the Company, supply
to the Company reports, returns and other information relating to the
Distributorship or the business relating to the Products.
The
Distributorship shall maintain, at its own expense, adequate location(s) and
means of transportation for the proper storage, sales, installation and
rendering of servicing of the Products, as well as capable personnel and
necessary materials and equipment.
The
Distributorship shall ensure that all installation employees, whether full-time
or part-time, contractors or subcontractors, undergo a program of training
as
relates to the proper installation of the Product.
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VI.
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CREDIT
LIMIT.
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Notwithstanding
any other provisions of this Agreement, the Company reserves the right to refuse
shipment of any order placed by the Distributorship if the total amount
owing
by
the Distributorship to the Company with respect to Products sold to the
Distributorship exceeds at the date of such shipment the sum of "to be
determined".
VII.
EXCLUDED
SALES
All
sales
inquiries and orders place in the exclusive territory of the Distributor will
be
placed and or referred by the Company to the Distributor without
exception.
IX.
TRADEMARKS
1.
The
Distributorship acknowledges that either the Company, its affiliates and
subsidiaries, is the owner of the Patents. Distributorship agrees that the
Patents shall remain vested in the Company, both during the term of this
Agreement and thereafter. Distributorship agrees, during the term of the
Agreement and thereafter: (a) not to challenge the validity or the ownership
of
any such Patents; and (b) not to assert or claim any right therein or in any
colorable imitation thereof.
2.
The Distributorship
acknowledges that either the Company, its parent or its subsidiaries is the
owner of the Trademarks and the goodwill attaching to the business in the
Products in respect to which they are used. Distributorship agrees that the
Trademarks shall remain vested in the Company both during the term of this
Agreement and thereafter. The Distributorship agrees during the Term of this
Agreement and thereafter: (a) not to challenge the validity or the ownership
of
any such Trademarks; and (b) not to assert or claim any right therein or in
any
colorable imitation thereof.
3.
The
Distributorship agrees to use or otherwise display such Trademarks only on
or in
connection with the Products in the same manner as done by the Company and
subject to the prior written approval of the Company.
4.
The
Distributorship shall not have the right to use any of the Trademarks in
combination with any other trademark, trade name or symbol without prior written
approval of the Company, and in this event the Distributorship shall cease
the
use of any
such
name
or combination upon termination of this agreement.
5.
The
Distributorship shall cease all usage of the Patent or Trademarks upon
termination of this Agreement.
X.
TERMINATION
OF AGREEMENT
1.
This
Agreement shall become effective as soon as the same has been executed by both
parties and shall continue in force until either party gives the other at least
sixty (60) days prior written notice of termination during the period of the
Agreement, or no less than thirty (30) days prior to the anniversary date of
this Agreement. If no notice is presented by either party this Agreement shall
be considered by both parties to have been renewed for an additional sixty
(60)
month period from the anniversary date of this agreement.
2.
Notwithstanding
any provisions herein to the contrary, the Company shall have the right at
any
time, by giving written notice to the Distributorship, to terminate this
Agreement, or any extension thereof, forthwith in any of the following events:
a.
If the
Distributorship shall commit any breach of the terms hereof and such breach
shall have continued ten (10) days after notice of such breach shall have been
given to the Distributorship; or
b.
If the
Distributorship enters into bankruptcy or liquidation whether compulsorily
or
voluntarily or compounds with its creditors or has a receiver appointed of
all
or any part of its assets or takes or suffers any similar action in consequences
or a debt or generally becomes unable to pay its debts when due; or
c.
If the
Distributorship shall cease to carryon business; or
d.
If the
Distributorship is unable to make timely payments herein under in the currency
agreed to herein by reason of governmental monetary controls or any other law
or
regulation; or
e.
There
is any material change in the existing ownership, control or management of
the
Distributorship or the Distributorship's business as Determined by the Company
in its sole discretion.
XI.
EFFECT
OF TERMINATION. Any
termination of this Agreement in
accordance with its terms shall:
1. Be
without prejudice to the rights of either party against the other which may
have
accrued up to the date of such termination;
2.
Not
affect or terminate any rights or obligations hereunder which by their express
terms or by implication are intended to survive such termination;
and
3.
Not
entitle either party to any compensation or payment for goodwill which may
have
been established or any termination pay, severance pay, indemnity or damages
on
account of present or prospective profits on sales or anticipated sales, or
on
account of expenditures made in connection with the business or any amount
for
any other cause by reason of such termination notwithstanding any law to the
contrary.
XII.
RETURN
OF COMPANY PROPERTY. upon
termination of this Agreement,
for any reason, the Distributorship shall offer for sale to the Company at
a
price equal to the Distributorship's net landed cost thereof all Products
purchased by the Distributorship pursuant to this Agreement and at that time
the
property of the Distributorship. The Company or its duly authorized agent shall
have full facilities to inspect such Products. The Company shall be under no
obligation to repurchase all or any of those Products but shall notify the
Distributorship of its determination whether or not to repurchase any or all
of
them within thirty (30) days of the date of receipt of such offer.
XIII.
CONFIDENTIALITY
1.
Except
for information intended for public dissemination, any information provided
by
the Company to the Distributorship, regardless of form, shall be deemed to
be
confidential information of the Company except if such information is: (a)
in or
becomes part of the public domain through no fault of the Distributorship;
(b)
disclosed to the Distributorship by a third party without restriction; or (c)
is
independently developed by the Distributorship without access to any information
furnished to it by the Company. All inventions, Patents, Trademarks and all
Product Information shall also constitute confidential information of the
Company. All such confidential information shall be held in confidence by the
Distributorship and, if in written form, shall be returned to the Company upon
its request. Distributorship shall not: (a) disclose such information except
to
its employees who have a bona fide need to know; and (b) reproduce such
information with the consent of the Company. The information described herein
shall include, without limitation, any information, including, without
limitation, design information, in electronically or encoded on computer disks,
magnetic tapes or other media accessible through use of a computer or other
electronic media.
2.
All
such
confidential information shall be used by Distributorship solely for the
purposes of performing its obligations under this Agreement and for no other
purpose. Upon the expiration or termination of this Agreement, Distributorship
shall forthwith return all confidential information of the Company and shall
destroy all copies thereof
in Distributorship's possession (including purging such confidential information
from its computers), and Distributorship shall certify such destruction to
the
Company in
writing, signed by an officer of the Distributorship, in affidavit
form.
3. To
the
extent Distributorship is required in connection with the performance of this
Agreement to disclose any confidential information to any authorized
subcontractor, Distributorship shall, by written agreement with each such
sub-contractor, require each such subcontractor to comply with the requirements
hereof.
XIV.
INDEMNIFICATION AND INSURANCE
1.
Distributorship shall indemnify and save the Company, its officers, directors
and shareholders, harmless from any liability or claim relating to the Products
(including, without limitation, the costs and reasonable attorney's fees in
connection therewith) that may be made by a third party, including, without
limitation, a claim relating to injury, including death, to persons or damage
to
property which is caused by the installation of the Products.
2.
Distributorship shall maintain during the term of this Agreement, General
Liability Insurance, including contractual, products liability and broad form
vendors' endorsement with limits to be determined upon point of
sale.
3.
Such
insurance shall be primary and noncontributory with respect to any insurance,
which the Company or any of the customers of the Distributorship may have,
and
the Company shall, under such insurance, be named as an additional insured
with
a cross liability endorsement. Prior to the commencement of the Term,
Distributorship shall furnish to the Company a certificate of insurance
evidencing that such insurance is in effect. The certificate shall also state
that the Distributorship's insurance carrier(s) shall notify the Company within
thirty (30) days of any cancellation, material change or exhaustion of the
aforementioned limits. Distributorship shall in such event furnish a new
certificate in the event of cancellation or expiration of any
insurance.
XV.
VARIATION OF DEFINITION OF PRODUCTS. Notwithstanding
anything contained
herein, the Company may at any time at its sole discretion vary the Products
included in the definition Clause I of this Agreement and thereby change
Schedule A accordingly by giving to the Distributorship notice in
writing:
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1.
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withdrawing
any article, which the Company ceases, to sell or manufacture or
ceases to
export without thereby incurring any liability for damages to the
Distributorship
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2.
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adding
or substituting further articles which are functionally similar to
the
Products or otherwise complement any article or line of articles
comprising the Products.
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XVI.
FORCE MAJEURE. The
Company shall not be liable, in any way whatsoever, to the Distributorship
for
failure to perform the terms of this Agreement or fulfill orders which have
been
accepted or for delay in delivery of Products in any case where such performance
or the fulfillment of any such order or shipment thereof is prevented by or
pursuant to any law, or governmental regulation or restriction, or by any labor
dispute, strike, lock-out or other labor trouble or casualty or by any cause
beyond the control of the Company, including, but not limited to, any act of
God, fire, flood, earthquake, storm, epidemics, quarantine restrictions, war
insurrection or riots, civil unrest, freight embargoes, car wrecks, delays
or
shortage in transportation, unusually severe weather or inability
to obtain necessary labor, materials, fuel, energy or manufacturing facilities
due to such causes.
XVII. COMPLIANCE
WITH LAWS. The
Distributorship shall comply with
all
laws, ordinances and regulations respecting the sales, installation, service
and
export of the Products from the country of manufacture and the importation
of
the Products into the countries of destination. Distributorship agrees that
no
part of the consideration paid to it pursuant to the sales of the Products
shall
be offered, paid or promised, directly or indirectly, to any governmental
official, any political party or official thereof, or any candidate for
political office, for the purpose of inducing such person or party to use his
or
its influence to affect or influence any act or decision of any national, state
or local government or any instrumentality of such governments. For the
purposes
of this Clause, the term "governmental official" shall include any officer
or
employee of any national, state or local governments, or any person acting
in an
official capacity for or behalf of such governments or such department, agency
or instrumentality.
XVIII.
NOTICES. All
notices, requests or other communications provided for or permitted hereunder
shall be in English and in writing and shall be delivered in person, or mailed
by registered air mail or telegraphed to the addresses set forth below the
signatures of the parties hereto executing this Agreement.
XIX.
ASSIGNMENT. This
Agreement and all rights granted the Distributorship herein are personal to
the
Distributorship and may not be assigned. Distributorship's rights hereunder
may
not be exercised by any other person, firm or corporation without the prior
written consent of the Company.
XX.
INTERPRETATION. In
case
of any doubt as to the interpretation of any of the provisions of this
Agreement, the English language version of the Agreement shall be
controlling.
XXI.
OTHER
AGREEMENT, AMENDMENTS. The
terms
and conditions herein contained constitute the entire agreement between the
parties and shall supercede all previous communications and agreements, either
oral or written, between the parties hereto with respect to the subject matter
hereof, and no agreement or understanding, varying, modifying or extending
the
same shall be abiding upon either party hereto unless in writing, signed by
a
duly authorized officer or representative thereof and containing an express
reference to this Agreement, nor shall any subsequent course of dealings or
conduct of the parties, or of either of them, result in any modification or
extension of this Agreement.
XXII.
HEADINGS. The
headings to the Clauses in this Agreement are for convenience only and shall
not
affect the construction thereof.
XXIII.
APPLICABLE LAW. This
Agreement and all matters relating directly or indirectly thereto or arising
there from shall in all respects be governed by and interpreted in accordance
with the laws of the State of Florida.
XXIV.
COUNTERPARTS. This
Agreement may be executed simultaneously in two (2) or more counterparts, each
of which shall be deemed as an original, but all of which shall be considered
one and the same instrument.
IN
WITNESS WHEREOF, Both
parties have hereby agreed to announce this as the definitive agreement and
have
dually agreed upon negotiating prices & terms as the equipment, machinery,
and products are acquired.
MAGNUM
D'
OR RESOURCES, Inc.
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President and CEO
ARTECH
RECYCLINGTECHNIK GMHB
By:
▇▇▇▇▇
▇. Assflag
Name:
▇▇▇▇▇ ▇. Assflag
Title:
Managing Director