EX 10(iv)
THIS AGREEMENT made this 25th day of May,2001.
BETWEEN:
GREEN DOLPHIN SYSTEMS CORP., a Company
incorporated under the State Laws of
Tennessee
(hereinafter referred to as the "Manufacturer")
and
V & L ROOFING LTD. a Company
incorporated under the laws of the Country of
Jamaica, West Indies
(hereinafter referred to as the "Distributor").
WHEREAS the Manufacturer manufactures certain specialty chemicals and
equipment and has developed application systems and technical know-how
associated with the products. Hereto these items will be designated as Assets
as specified in Schedule "A" and "B".
AND WHEREAS the Distributor wishes to market the Assets in the countries
listed in Schedule "C" hereto (the "Territory");
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Exclusive Distributorship
The Manufacturer hereby grants to the Distributor the exclusive right to sell
the Assets in the Territory. During the period that the said right is in
effect, the Manufacturer shall not sell the Assets within the Territory and
shall not grant the rights to do so to any other party.
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2. Term
The term of this Agreement shall be five (5) years from the date hereof. The
Distributor shall have the right to renew this Agreement on the same terms
and conditions for additional, consecutive thirty-six (36) month periods,
provided that:
(a) Initial order will comprise of US $50,000 consisting of a mix of
products, equipment and marketing and sales support.
(b) The Distributor shall place within six (6) months from the date of
receipt of initial order a minimum order of one-40 ft. container consisting
of a mix of products and equipment as set forth in Schedules "A" and "B".
(c) The Distributor satisfies the minimum sales volume quota requirements
as set forth in "A" above semi-annually for the next three years.
(d) The Distributor has given to the Manufacturer written notice of its
intention to renew this Agreement at least three (3) months prior to the end
of the term or of any renewal thereof;
(e) The Distributor is not, at the expiration of the term or renewal
being renewed, in default of any of the provisions of this Agreement or of
any registered user Agreement referred to in this Agreement or of any other
Agreement between the Distributor and the Manufacturer; and
(f) The Distributor executes the Manufacturer's then current form of
Distributor Agreement, which shall be in substantially the same form as this
Agreement.
3. Pricing and Terms of Purchase
The Manufacturer shall have the right to establish and to change from time to
time prices with 60 day notice, charges and terms governing the sale of
products and equipment and the provisions of Manufacturer's market support,
advertising, selling literature, display material and other Product data, and
the Manufacturer shall give the Distributor reasonable written notice of any
proposed change therein. Without restricting the Manufacturer's right to
change the prices of Products as aforesaid, the initial product and equipment
prices are as set out in Schedule "A" and "B" hereto.
4. License to Manufacture
Pursuant to the progress of sales volume and market development upon the third
(3) anniversary date of this Agreement, the Manufacturer and the Distributor
will assess the possibility of a joint operation for local Manufacturing of
the said Assets in the territory.
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5. Orders
All orders to the Manufacturer from the Distributor shall be subject to
acceptance by the Manufacturer. Each order submitted by the Distributor shall
be accompanied by a Irrevocable Confirmed Letter Of Credit issued by a Prime
Bank to the First Tennessee Bank, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇ -Account Number - 100235513 in form attached as Schedule "D" hereto for
the full purchase price of the Assets, which shall be delivered by the
Manufacturer, F.O.B. Powell, Tennessee or F.O.B. such other port shipment as
the Manufacturer shall advise the Distributor from time to time. The term
"F.O.B." and the obligations of the parties flowing therefrom, shall be as
specified in International Chamber of Commerce Incoterms, 1980 edition, as
reproduced in Schedule "E" hereto.
6. Sales Outside Territory
The Distributor shall not, without the prior written consent of the
Manufacturer, directly or indirectly, sell Assets anywhere other than in. the
Territory or sell the Assets to any party for resale outside of the
Territory.
7. Warranty
Upon written request by the Distributor, the Manufacturer shall furnish to
the Distributor for each purchase identified in such request, the
Manufacturer's standard warranty, if applicable, covering Products and
Equipment sold to such purchase, as such warranty is established by the
Manufacturer from time to time.
8. Training
Upon confirmation of the Agency Agreement and placement of the initial order,
the Distributor within 30 days will send technical representative(s) to the
offices of the Manufacturer for two (2) weeks to be trained on product
knowledge, marketing, methods of application, equipment use and technical
certification program.
9. Inquires
The Manufacturer shall promptly forward to the Distributor all inquiries
relating to the sale of the Assets in the Territory.
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10. Operations
In order to maintain the Manufacturer's high quality associated with the
Assets, and to promote and protect the goodwill associated therewith, the
Distributor agrees:
(a) To use its best efforts in promoting sales of the Assets in the
Territory and to use, m regard thereto, the advertising, sales promotion and
merchandising materials and programs developed from time to time by the
Manufacturer and made available to the Distributor.
(b) To comply, at all times, with all laws, regulations, by-laws, orders,
rulings and permits in force in the Caribbean less the Dominican Republic and
in each country within the Territory and which are applicable to the Assets
or the Distributor's dealings with the Assets;
(c) To use and display the proprietary marks, as hereinafter defined,
only in such manner as is contemplated or provided for in this Agreement;
and
(d) Not to engage in the sale or application of products simi1~r to or
competitive with the Assets.
11. Proprietary Marks
The term "Proprietary Marks" as used in this Agreement shall mean the
tradename and trademark "Green Dolphin" and such other tradenames, trademarks
and logos as are now or subsequently designated by the manufacturer. The
Distributor agrees and acknowledges that the right granted herein to the
Distributor to use the Proprietary Marks applies only to their use in
connection with the sale of Assets and the Distributor further agrees and
acknowledges that:
(a) The Distributor will execute and deliver to the Manufacturer such
documentation as the Manufacturer may require for the purpose of trademark or
similar or associated registrations in any other country comprising the
Territory or for the purpose of registering the Distributor as a registered
user under the Trademarks Act (USA);
(b) The Manufacturer is the exclusive owner of the Proprietary Marks and
the Distributor agrees that any unauthorized use of the Proprietary Marks is
and shall be deemed to be an infringement of the Manufacturer's rights and a
breach of this Agreement;
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(c) Except as expressly provided herein or in any registered user or other
Agreement entered into by the Distributor hereunder, the Distributor,
acquires no right, title or interest in the Proprietary Marks, and any and
all goodwill associated with the Proprietary Marks shall enure exclusively to
the benefit of the Manufacturer;
(d) During the term of this Agreement and thereafter, not to dispute or
contest, for any reason whatsoever, directly or indirectly, the validity or
enforceability of any of the Proprietary Marks, or to directly or indirectly
attempt to dilute the value of the goodwill attaching to the Proprietary
Marks, and not to counsel or assist any other party to do any of the
foregoing;
(e) To notify the Manufacturer promptly of any attempt by any party other
than the Manufacturer or of the Manufacturer or the Distributor to use the
Proprietary Marks, or any variation or imitation thereof, and to notify the
Manufacturer promptly of any action involving the Proprietary Marks that is
threatened or instituted against the Distributor and to allow the
Manufacturer to undertake the defense of such action, at the Manufacturer's
option. In the event that the Manufacturer undertakes such defense or
prosecutes any action relating to the Proprietary Marks, the Distributor
shall execute such documents and do such acts and things as, in the opinion
of the Manufacturer, may be necessary to carry out such defense or
prosecution; and
(f) Without the Manufacturer's prior written consent, not to use any of
the Proprietary Marks as part of the Distributor's corporate or other legal
name, or as part of the corporate or other legal name of any corporation,
partnership or other entity in which the Distributorship has a direct or
indirect interest, and not to use the Proprietary Marks in any way not
specifically permitted by this Agreement.
12. Confidentiality
The Distributor and Manufacturer acknowledge that all information relating to
each other's business is confidential and constitutes trade secrets of each
party. The Distributor and Manufacturer agrees to maintain in absolute
confidence all such information. Without restricting the remedy for breach of
this paragraph, both parties acknowledge that damages will not constitute a
sufficient remedy for any such breach and that the injured party will be
entitled to injunctive relief.
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13. Termination
Either party shall be entitled to terminate this Agreement if:
(a) The other party shall commit an act which, if committed in the
Caribbean less the Dominican Republic would constitute in the Caribbean less
the Dominican Republic, an act of bankruptcy under the Bankruptcy Act, or if
a liquidator, trustee, receiver or other such individual shall be appointed
in regard to such other party; or
(b) The other party fails to correct any default under this Agreement
within thirty (30) days of written notice thereof.
In addition to the foregoing, the Manufacturer shall be entitled to terminate
this Agreement if:
(a) The Distributor makes any unauthorized sale, assignment or transfer
of the rights granted hereunder;
(b) The Distributor misrepresents or has misrepresented any fact,
condition or report required to be made or which is set out in this
Agreement; or
(c) The Distributor makes any unauthorized use of the Proprietary Marks
or violates the provisions of any registered user Agreement relating
thereto.
14. Effect of Termination
Upon termination or expiration of this Agreement, the Distributor shall cease
to sell or otherwise deal with the Assets and shall immediately cease to use,
directly or indirectly, in advertising or in any other manner whatsoever, the
Proprietary Marks or any other identifying characteristics or indicia of the
Assets or of the Manufacturer, and any confidential methods, procedures and
techniques associated with the Assets. The Distributor shall no longer use,
employ or trade under any description or representation that suggests or
indicates a connection or association with the Manufacturer.
15. Non-Competition
The Distributor agrees that during the term of this Agreement the Distributor
shall not either directly or indirectly or through, on behalf of or in
conjunction with any other person or entity:
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(a) Direct or attempt to divert any customer of the Manufacturer or of
any party to any competitor of the Manufacturer or of a Dealer by direct or
indirect inducement or otherwise;
(b) Employ, seek to employ or accept the services of any person who is or
has been employed within the previous six months by the Manufacturer or its
affiliates or by any Dealer; or
(c) Own, maintain, engage in, be employed by or have a financial interest
in any business which is the same as. or reasonably similar to, the business
conducted by the Manufacturer or its Dealers.
16. Assignment
The Distributor acknowledges that the granting of the rights hereunder was
based upon the Manufacturer's investigation of the Distributor's
qualifications and that such rights are personal to the Distributor. The
Dealer shall not sell, transfer, assign or otherwise dispose of the rights
granted hereunder, or any rights or privileges incidental thereto, to any
person, firm, partnership, corporation or other third party.
17. Relationship
The Distributor is not an employee of the Manufacturer for any purpose
whatsoever, but is an independent contractor. All expenses and disbursements,
including, but no limited to, those for travel, maintenance, entertainment,
office, clerical and general selling expenses, and all liabilities, that may
be incurred by the Distributor in connection with this Agreement shall be
borne wholly and completely by the Distributor and the Manufacturer shall not
in any way be responsible or liable therefor. The Distributor does no have
and shall not hold himself out as having any contracts or obligation, either
expressed or implied, on behalf of, in the name, or binding upon the
Manufacturer, or to pledge the Manufacturer's credit, or to extend credit in
the Manufacturer's name.
18. Non-Liability
The Manufacturer shall not be liable to the Distributor for any injury to or
death of any person or for any damages to property caused by the
Distributor's act or neglect or for any other liability of the Distributor,
except as specifically stipulated in this Agreement, and the Distributor
shall fully indemnify and save harmless the Manufacturer in regard thereto
and in regard to all costs -and expenses, including legal expenses, arising
therefrom.
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19. Entire Agreement
This Agreement constitutes the entire Agreement between the parties and all
prior negotiations, commitments, conditions, representations, warranties and
undertakings are merged herein. No amendment or modification to this
Agreement shall be valid or binding upon the parties unless in writing,
signed by both of the parties.
20. Non-Waiver
No waiver by either party to this Agreement of any breach, failure or default
in performance by the other party, and no failure, refusal or neglect by a
party hereto to exercise any right hereunder or to insist upon strict
compliance with or performance of the other party's obligations hereunder,
shall constitute a waiver of the right to require strict compliance with the
provisions hereof.
21. Governing Law
This Agreement shall be governed by and construed in accordance with the
State Laws and to the extent applicable to the United States of America.
22. Notices
All notices, consents, approvals or correspondence permitted or required to
be given hereunder shall be deemed to be sufficiently given if delivered or
sent by confirmed telefax as follows:
(a) to the Manufacturer:
Green Dolphin Systems Corp.
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
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Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) to the Distributor:
V & L Roofing Ltd.
Duncaris P.O.
Trelaway, Jamaica
West Indies
Tel: (▇▇▇-▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇-▇▇▇) ▇▇▇-▇▇▇▇
Any notice so delivered or telefaxed shall be deemed to be received on the
date of delivery. Either party may from time to time by notice in writing
given pursuant to the terms hereof may change its address for the purpose of
this paragraph.
IN WITNESS WHEREOF the parties have executed this Agreement.
Witness by: GREEN DOLPHIN SYSTEMS CORP.
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ /s/
Witness by: V & L ROOFING LTD.
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/s/ /s/
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SCHEDULE "A"
Products: $20,000.00
(1) Marketing/Sales/Training: 1 week seminar in Powell, Tennessee
- Operations manual & product description
- Marketing & sales manual
- Product knowledge
- Corporate stationery & cards
- Order forms & quotation sheets
- Commercial brochures & literature
- Application methods & techniques
- National co-op advertising
- Certificate of Achievement
- 1 weeks on-site marketing
& sales support by company rep in Jamaica $10,000.00
SCHEDULE "B"
(2) Equipment & Application Supplies
- Spray equipment
- Equipment attachments
- Cleaning equipment $ 10,000.00
(3) Dealership Fee: $ 10,000.00
$ 50,000.00
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SCHEDULE "C"
Description of Territory:
The Country of the Caribbean less the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
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