Dated as of ____ May, 2004
Ex 10.11
EXCLUSIVE DISTRIBUTORSHIP AGREEMENT
SUNWOO ENERGY TECHNOLOGY INC.,
A body corporate incorporated pursuant to the laws of the
Republic of Korea
(hereinafter "SUNWOO")
OF THE FIRST PART
- And -
▇▇▇ ▇▇▇ HWEA,
An individual whose address is
________________________________________
(hereinafter "KOO")
OF THE SECOND PART
- And -
INNOVATIVE ENERGY SOLUTIONS INC.,
A body corporate incorporated pursuant to the laws of the
State of Nevada, USA (hereinafter "IESI")
OF THE THIRD PART
WITNESSETH:
WHEREAS SUNWOO has developed the Product which is set forth in
article 1.1("Product");
AND WHEREAS the parties have agreed that IESI is to market and
distribute the Product pursuant to the terms and conditions of this Agreement
in the Territory which are set forth in article 2.1 ("Territory");
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
ARTICLE 1 - DEFINITIONS
1.1 Definitions
(a) "Agreement" means this Exclusive Distributorship Agreement;
(b) "Product" means the Heat Pipe Heat Exchanger that SUNWOO has
developed and manufactures.
1.2 Index and Headings
The index and headings in this Agreement have been inserted for
reference and as a mater of convenience only and in no way define, limit or
enlarge the scope or meaning of this Agreement or any provisions hereof.
ARTICLE 2 - RELATIONSHIP OF THE PARTIES
2.1 ▇▇▇▇▇
▇▇▇▇▇▇ agrees to grant Exclusive Distributorship Right for the Product to IESI
in the Territory of Canada, USA, Mexico. SUNWOO agrees to grant IESI a (ROFER)
right of first refusal for Europe.
2.2 Obligations of IESI
(a) On execution of the Agreement, IESI will issue KOO 1,000 (Five
Thousand) share options per year for the term of this Agreement of IESI
at $2.50 USD per option.
(b) IESI shall use its best efforts and to devote such time as is
necessary to market and promote the Product.
(c) To maintain the exclusive distributorship in the Territory,
IESI shall order One Thousand (1,000) units of the Product a year.
(d) IESI shall pay Ninety Six Thousand (96,000) Canadian Dollars to
KOO as the Distributorship fee. Said fee shall be paid Four Thousand
(4,000) Canadian Dollars on a monthly basis for 24 months and said
payment shall commence in May, 2004. Both parties agree that in the
event of the termination of this Agreement within 24 months, KOO doesn't
have any responsibility to refund the said distributorship fee which is
already paid, nor IESI have any responsibility to pay KOO the balance of
distributorship fee.
0.1 Obligations of SUNWOO
(a) SUNWOO shall provide the Product to IESI at the price
described in "Schedule A" for the first year.
(b) SUNWOO shall train IESI's employees or agencies and provide
sufficient technical support.
(a) SUNWOO will not sell the Product to distributors, subsidiaries,
subsidiaries, sub- subsidiaries, third parties, agents, or through other
licensees or distributors or license the Technology to any third party in
the Territory described herein.
(b) SUNWOO shall not allow or permit distributors, agents,
subsidiaries and any third parties outside the territory granted to IESI
and described herein, to sell or export into IESI'S territory. In the
event this should occur, SUNWOO further agrees to notify IESI and
immediately proceed with legal remedies to prevent such exports or sales
from un-authorized distributors outside of IESI's exclusive territory.
ARTICLE 3 - TERM OF AGREEMENT
The term of the Agreement will be Five (5) years from the signing date of
this Agreement. This agreement will be renewed upon both parties consent prior
to the expiration of the initial term.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES
As of the date of this Agreement, SUNWOO represents and warrants to IESI that:
a.1 SUNWOO covenant that all the patents, trade secrets, know-how,
designs, all other intellectual property and all applications and
registration respecting the intellectual property are in good
standing.
a.2 SUNWOO covenant to maintain such intellectual property and
any registrations regarding such intellectual property diligently.
a.3 SUNWOO has the necessary corporate powers and authority to
execute and deliver this Agreement and any other documents required
to be executed and delivered hereunder and to perform its
obligations hereunder; and
a.4 SUNWOO represents and warrants that it is not a party as
either licensee or licensor relating to any item of its
intellectual property rights regarding the Product.
a.5 SUNWOO's representations and warranties as found in this
Article are based on facts known to SUNWOO, or facts that have
arisen as of the signing date. In the event facts or circumstances
are changed or new facts arise after the signing date that are
inconsistent with the representations and warranties of this
Article, IESI agrees that such changes shall not be deemed to be a
breach or a default of this Agreement.
ARTICLE 5 - NEW PRODUCT
SUNWOO hereby agrees to extend this Agreement to include any and
all future additions, changes, improvements and modifications to the Product.
Such additions, changes, improvements and modifications to the Product shall be
immediately disclosed to IESI.
ARTICLE 6 - CONFIDENTIALITY
a.1 Upon the termination of this Agreement and any extension thereof,
both parties acknowledge that it will continue to obtain knowledge
confidential and proprietary information of both parties
("Confidential Information").
a.2 Both parties acknowledge that the Confidential Information is unique
and novel, that they will take all steps necessary to protect such
Confidential Information and will not divulge the same without the
prior written consent of the counterparts.
ARTICLE 7 - TERMINATION
7.1 This Agreement may be terminated by consent of both parties prior
to the expiration of the term for just cause.
7.2 The following causes shall be considered circumstances for which
either party may terminate the Agreement:
a. Bankruptcy
b. Receivership of either party
c. Breach of obligation under this Agreement
d. IESI fails to pay the distributorship fee or to order 1,000 units
per year
ARTICLE 8 - LIMITATION OF LIABILITY
8.1 Force Majeure
If the performance of either party is made impossible by reason of
any circumstance beyond that party's reasonable control, including without
limitation, fire, explosion, power failure, acts of God, war, any law, order,
regulation, ordinance or requirement on any government or legal body or any
representative of any such government or legal body, unrest, including without
limitation. Then the party shall be excused from such performance on a day-to-
day basis to the extent of such interference, provided that that party shall
use reasonable efforts to remove such causes of non-performance or seek
alternate methods of performance.
8.2 Indemnity
(a) IESI hereby agrees that it shall be liable to SUNWOO and shall
indemnify and save and hold SUNWOO harmless from any and all fines, claims,
demands, damages, actions, causes of action, costs, expenses, legal fees on a
full indemnity basis as between a solicitor and his own client, and other
liabilities of every kind and nature whatsoever arising out of or in connection
with or resulting directly or indirectly from the negligent or wrongful acts of
IESI, its employees, officers, directors and agents.
(b) SUNWOO hereby agrees that it shall be liable to IESI for and shall
indemnify and save and hold IESI harmless from any and all fines, claims,
demands, damages, actions, causes of action, costs, expenses, legal fees on a
full indemnify basis as between a solicitor and his own client, and other
liabilities of every kind and nature whatsoever arising out of or in connection
with or resulting directly or indirectly from the negligent or wrongful acts of
the employees, officers, directors or agents of SUNWOO and in particular,
relating to the manufacturing of the Products.
ARTICLE 9 - MISCELLANEOUS
9.1 Assignment
IESI shall have the right to assign or sell its rights under this
Agreement in whole or in part with the consent of SUNWOO, and SUNWOO agrees
that such consent will not be reasonably withheld.
9.2 Governing Law and Arbitration
This Agreement shall be governed by the Laws of Alberta Canada, and
any litigation arising out of any breach of terms and conditions of this
Agreement by either party shall be solved by the Arbitration.
9.3 Unenforceable Terms
If any terms, covenants or conditions of this Agreement or the
application thereof to any party or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement or application of
such terms, covenants or conditions to a party or circumstance other than those
to which it is held invalid or unenforceable shall not be affected thereby and
each remaining terms, covenants or conditions of this Agreement shall be valid
and shall be enforceable to the fullest extent permitted by law.
9.4 Amendments
This Agreement and any provision contained herein may be altered or
amended when any such changes are reduced to writing and signed by the parties
hereto.
#
IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have
caused this Agreement to be executed as of the date first written above.
#
SUNWOO ENERGY TECHNOLOGY INC.
By: ▇▇▇ ▇▇▇ Hwea
Title: Chief Executive Officer
/s/ ▇▇▇ ▇▇▇ Hwea
Signature:
▇▇▇ ▇▇▇ HWEA
Signature:
INNOVATIVE ENERGY SOLUTIONS INC.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Signature:
[Schedule A]
The Price for 24 Heat Pipe Heat Exchanger for the house:
100 order: $400 Canadian Dollars
200 order: $350 Canadian Dollars
1,000 order or more: $300 Canadian Dollars or less
Note: This price is calculated without considering the cost for the fan and
delivery
Additional Agreement
SUNWOO has the right to sell the Product in the Territory for the reasonable
purposes to both parties such as research, gathering data of the Product,
development of new product, etc. In the event, SUNWOO shall give prior notice
to IESI and follow the IESI's price for the Product.