THIS MARKETING AGENCY AGREEMENT
Made as of the 21st day of September, 2006
BETWEEN:
WATAIRE INTERNATIONAL, INC., A NEVADA CORPORATION WHICH IS A WHOLLY
OWNED
SUBSIDIARY OF CIMBIX
CORPORATION, A WASHINGTON CORPORATION (JOINTLY REFERRED TO
AS THE "COMPANY")
AND
P 204 ENTERPRISES LTD.
P204 ENTERPISES LTD. 258 CAMELOT COURT, KELOWNA BC,
VIV IN2 CANADA
(The "Marketing Agent")
WHEREAS, Wataire
Industries, Inc., a
Nevada corporation, is the legal and
beneficial owner of all right, title, intellectual property, and
interest in and
to the trade name, copyright, brand and trademark "Wataire" with
respect to
Wataire's proprietary
water-generating
machines (the "Product").
WHEREAS, Wataire
granted a worldwide
license to the Company to market and
distribute the
Products and the Company have the rights to use packaging,
accessories, and promotional materials for the purposes of selling
the Products;
WHEREAS, The
Marketing Agent has requested and the
Company has agreed to
grant to the Marketing
Agent, the distribution and marketing rights for private
label branded
Products on the terms and conditions hereof.
NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and
mutual covenants and agreements hereinafter set forth, the
Marketing Agent,
the Company, and Wataire International agree as follows:
1.00 APPOINTMENT
1.01 The Company hereby appoints the Marketing Agent its Marketing
Agent for
private label branded products upon the terms and conditions
hereinafter
set
forth, and the Marketing Agent hereby accepts such appointment.
1.02 SCOPE OF APPOINTMENT: Providing that the Marketing Agent has
not breached
any provisions of this agreement and provided further that the
Marketing Agent
diligently and faithfully carries out the duties and obligations
imposed on it
by this Agreement, the Marketing Agent shall, during the term of
this Agreement,
and any extended period of Agreement or upon renewal of this
Agreement, be the
Wataire marketing Agent of the Company selling private label
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products on a global basis. The Company shall not appoint any other
Private
Label Marketing agent nor otherwise distribute or sell the
Marketing Agent's
branded product. The
Marketing Agent also agrees to exclusively purchase all
atmospheric water generating related products from the Company.
Notwithstanding the Company's appointment of the Marketing Agent as
its private
label Marketing Agent and the Marketing Agent's agreement to
exclusively
purchase all atmospheric water generating products from the
Company, the Company
reserves the right, at its sole discretion, to manufacture and sell
its products
under any other private label brand on the following
conditions:
(i) The Company agrees not to manufacture or sell its
atmospheric
water generating related products to or under any other private
label
brand other than the "Wataire" brand(s), any other brand developed
by
the Company for its own sales, or the Marketing Agent's private
label
brand(s) for less than a minimum of 20% over the standard
invoice
price to the Marketing Agent before freight, taxes and duties.
(ii) The Marketing Agent will use its best efforts assist the
Company
by contributing its expertise on successful brand creation and
development, and the Company will endeavor to ensure the private
label
brand does not create undue market channel confusion or make
available
any foreseeable technical advantages that are not also available
to
the Marketing Agent's brands.
(iii) The Company and the Marketing Agent shall equally share
the
revenues from any competitive private label brand introduced by
the
Marketing Agent, which revenues are above the amounts over the
normal
invoice price to the Marketing Agent before freight, taxes and
duties.
The Marketing Agent agrees to bring all private label requests
from
its retail market channel customers to the Company and, if the
Company
agrees to supply the retailer's private label brand, then the
Marketing Agent will be compensated as in 1.04 above. This
provision
is to prevent loss of any prospective private label sale and
insure
cooperation between the Company and the Marketing Agent.
1.03 PRICING POLICY:
Prices are subject to revision and change by the Company
from time to time, and the Company will make every effort to
provide the
Marketing Agent 30-45 days notice of any price changes.
1.04 SUB AGENTS: The Company grants the right to the Marketing
Agent to appoint
Sales Dealers and Sub-Distributors, such appointments shall be at
the Marketing
Agents expense, subject to the provisions of Section 4.02 below and
subject to
prior written approval by the Company
1.05 SALES ACTIVITIES: The Company grants the rights to the
Marketing Agent to
market promote and sell the private label branded products.
1.06 Sales quota: The Company agrees that only the sales or orders
generated
directly by the Marketing Agent's efforts for the sale of the
Marketing Agent's
branded products will be counted as part of any required sales
quota.
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1.07 CUSTOMER INQUIRIES. The Company covenants and agrees
that all inquiries
with respect to private label brands, or orders for, the Marketing
Agents brand
of Products received by the Company shall be referred to the
Marketing Agent for
the Marketing Agent's attention in accordance with the terms of
this agreement.
1.08 The Marketing Agent covenants and agrees that all inquiries
with respect to
private label brands or orders for the Product received by the
Marketing Agent
that he cannot appropriately service shall be referred to the
Company for the
attention of the Company.
2.00 TERM
The term of this Agreement shall be for a period of five years and
will commence
immediately upon execution of this agreement.
RENEWAL.
The Company and the Marketing Agent agree to negotiate an extension
to this
agreement for a further five-year period, if, within the term of
this Agreement,
the Marketing Agent has fulfilled all of its obligations and duties
hereunder.
3.00 OBLIGATIONS
OF THE AGENT
During the term of this Agreement the Marketing Agent shall use its
best efforts
to advertise
and promote the sale of the private
branded Products and to make
regular and
sufficient
contact with any prospective customers.
3.01 The Marketing
Agent agrees to supply the Company with quarterly records of
all contacts
made by the Marketing Agent's representatives; and
3.02 The Marketing Agent assumes all liability,
responsibilities and expenses
for "After Sales
Service", and must work towards stocking a minimum quantity of
replacement parts
equal to 3-4% of its projected sales volume.
3.03 The Marketing Agent agrees to limit his sales
activities to the private
label branded
product unless otherwise authorized by the Company.
4.00 STATUS OF AGENT
4.01 The status of the Marketing Agent shall be that of an
independent
contractor and the Marketing Agent shall have no authority to
assume or
create any obligation whatsoever expressed or implied, in the name
of the
Company, or to bind the Company in any manner whatsoever.
4.02 The Marketing Agent shall have no authority hereunder to enter
into any
contract of sale or employment on behalf of the Company, or to
endorse the
Company's checks, or to make allowances or adjustments on accounts
for the
return of merchandise, except pursuant to written authorization of
the
Company. The Company retains the right to review and approve of the
legal
language in any Dealer, Sub-agent or Distribution appointment
agreement
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entered into by the Marketing Agent that will or could oblige the
Company
in
any manner.
4.03 The Marketing Agent undertakes and agrees that it will not
furnish to any
customer or prospective customer, any warranties, undertakings,
or
guarantees other than the Company's standard written and authorized
product
warranties, undertakings or guarantees that may intend to involve
the
responsibility or liability of the Company unless authorized by the
Company
in
writing. In the event that the Marketing Agent does allow or
furnish to
customers or prospective customers, any additional warranties,
undertakings
or
guarantees of any nature whatsoever, which might involve the
responsibility or liability of the Company, and which is not
authorized by
the
Company in writing, the Marketing Agent agrees to indemnify and
save
the
Company harmless from any claims, demands, damages, costs or
losses
whatsoever arising out of or in any way connected with such
warranties,
undertakings or guarantees.
5.00 EXPENSES
5.01
Except as hereinafter provided, all expenses in connection with
the Marketing Agent's performance of this Agreement and its
activities
as Marketing Agent for the Company in accordance with the terms
of
this Agreement, including, but not limited to travel,
automobile,
salaries and supplies, shall be borne by the Marketing Agent and
it
shall be solely responsible for the payment thereof.
At its discretion and in the interest of promoting sales the
Company
may provide at its expense, technical information, access to
marketing
materials and technical personal for purposes of training,
product
launches, and trade shows.
6.00 ACCEPTANCE OF ORDERS
6.01
Orders received by the
