EXHIBIT 10.20
CONSULTING
AND REPRESENTATION AGREEMENT
BETWEEN
WHIZBIZ,
LLC
AND
LOCATION
BASED TECHNOLOGIES INC.
This
AGREEMENT made by and between J. Emilio Gayoso dba WhizBiz LLC
(hereinafter referred to as “WhizBiz”), with its
principal office located at: 12 Meridian, Dove
Canyon CA 92679 and Location Based Technologies Inc
(a Nevada corporation and hereinafter referred to as
“Company”), with its principal office located at
4989 E. La Palma Ave., Anaheim CA 92807
WHEREAS,
Company desires to retain Whizbiz, and Whizbiz desires to be
retained as Company’s consultant and sales
representative for the products and territories identified
below, all on the terms and conditions set forth in this
agreement,
NOW
THEREFORE, in consideration of the mutual covenants and
agreements contained herein, each of the parties hereto
intending to be legally bound, it is agreed as
follows:
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A.
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“Products”
shall mean the products currently manufactured and/or distributed
by Company as indicated on Exhibit A of this
Agreement.
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B.
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“Territory”
shall mean defined accounts and/or classes of trade within a
geographical area as set forth in Exhibit B of this
Agreement.
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C.
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“Customer”
shall mean any accounts/entities covered by Territory as set forth
in Exhibit B of this agreement.
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D.
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“House
Accounts” shall mean those accounts in the Territory for
which sales are non-commissionable. Customers designated
by Company as House Accounts are listed in Exhibit D of this
agreement and may be added to or modified from time to time by
Company at it’s sole discretion. In the event that
an original Whizbiz customer of Company’s products is
designated as a “House Account”, commissions for all
such customers is payable to Whizbiz for six (6) months following
the “House Account” designation.
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E.
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“Net
Invoice Price” shall mean the total price at which an order
is invoiced to the customer prior to any discount offered by
Company in compensation for early payment. Excluded from
the net invoice price are all shipping and mailing costs, duties,
taxes, and insurance, and related adjustments granted to the
customer by Company as shown on the face of the
invoice.
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2.
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APPOINTMENT
AND AUTHORITY OF WHIZBIZ
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A.
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Subject
to the terms and conditions of this Agreement, Company appoints
Whizbiz as its exclusive selling agent for the Products to OEM/ODM,
VARs, System Integrators, and Distributors (with the potential
exception of BDI/Laguna and GE Thompson) in the Territory, and
Whizbiz accepts the appointment and agrees to sell and promote the
sale of the products. There is a non-exclusive
arrangement for direct sales of product to Resellers by Ackrich and
Associates International Marketing, Inc.
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B.
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For
sales to any Customer within the Territory, Company shall pay to
Whizbiz a commission in accordance with terms outlined in Exhibit C
below.
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C.
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Whizbiz
shall neither advertise the Products outside the Territory nor
solicit orders from outside the Territory without the prior written
consent of Company.
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D.
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The
relationship of Company and Whizbiz established by this Agreement
is that of independent contractors, and nothing contained in this
Agreement shall be construed to (i) give either party the power to
direct and control the day-to-day activities of the other, (ii)
constitute the parties as partners, joint ventures, co-owners or
otherwise as participant in a joint undertaking, or (iii) allow
Whizbiz to create or assume any obligation on behalf of Company for
any purpose whatsoever. All financial and other
obligations associated with Whizbiz’s business are the sole
responsibility of Whizbiz.
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A.
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As
full payment for any and all services rendered by Whizbiz and in
consideration of the effort of Whizbiz and all of the expenses
incurred by Whizbiz, Company agrees to pay to Whizbiz, and Whizbiz
agrees to accept, a monthly retainer fee and commissions on sales
of the Products which shall be calculated as set forth in Exhibit
C.
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B.
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The
commission shall apply to all orders, subject to terms as specified
in Exhibit C, from all Customers in the Territory, with the
exceptions noted in 2A above, that have been accepted by Company,
whether or not such orders were originally solicited by
Whizbiz.
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C.
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In
no case will any compensation paid to Company employees be deducted
from commissions due Whizbiz.
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D.
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Monthly
retainer and commissions will be paid on or before the 15th day of
each month during the term of this agreement. Commissions not paid
within the agreed payment terms will be subject to finance
charges. Annual Interest Rate: 18% or 1.5% per month on
balance due. Bonuses will be listed in Attachment
A.
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E.
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Company
shall have the absolute right to chargeback commissions on all
shipments not paid by an authorized Customer over ninety (90) days
past the invoice date, provided Company re-credits Whizbiz for the
appropriate commission applied to actual partial or full payments,
less fees incurred in the process of collecting the payments,
subsequently received from the authorized Customer.
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F.
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Company
reserves the right to chargeback (debit) the full amount of paid
commissions on products returned by customer to Company for
credit.
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G.
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Payment
of commissions shall be in United States dollars and shall be
subject to all applicable governmental regulations and rulings,
including the withholding of any taxes required by
law.
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H.
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Company
shall submit to Whizbiz monthly statements of the commissions due
and payable to Whizbiz under the terms of this Agreement, with
reference to the specific accounts on which the commissions are
being paid. Company will submit or cause authorized
two-tier distributors to submit, at No Charge to Whizbiz, an
electronic report including all sales made in the previous month by
named customer bill to, including separate ship to locations and
zip codes.
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A.
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All
sales shall be at prices and upon terms established by Company and
Company shall have the right to establish, change, alter, or amend
prices and other terms and conditions of sale in its sole
discretion. Whizbiz shall not accept orders in
Company’s name, make price quotations or delivery promises
without Company’s prior approval.
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B.
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All
orders obtained by Whizbiz shall be subject to acceptance by
Company at its principal office currently located at the address
listed for Company at the beginning of this Agreement, and all
quotations by Whizbiz shall contain a statement to that
effect. Whizbiz shall have no authority to make any
acceptance/delivery commitments to any
customers. Company shall send copies to Whizbiz of any
written acceptances on commissionable orders.
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C.
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Company
shall have the sole right of credit approval or credit refusal for
customers in all cases.
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D.
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Company
shall render all invoices directly to the customers. Invoice
payments shall be made directly to Company by
customers.
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E.
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It
is expressly understood by Whizbiz that full responsibility for all
collection rests with Company.
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F.
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Company
shall furnish Whizbiz, at no expense to Whizbiz, samples, catalogs,
literature and any other material necessary for the proper
promotion and sales of its products in the territory.
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G.
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Whenever
Whizbiz, at Company’s request, takes possession of
Company’s products for the purpose of delivering such
products to customers or for any other purpose, the risk of loss or
da
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