|
Exhibit 10.29
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT ("Agreement"), effective this 18th day
of November, 2008 ("Effective Date"), by and between Rayovac
division of Spectrum Brands. Inc. a Wisconsin corporation, with
principal offices at 601 Rayovac Drive, Madison, Wisconsin USA
("Distributor"), and Sunovia Energy. a Florida corporation, with
principal offices at 6408 Parkland Drive, Suite 104. Sarasota.
Florida 34243 ("Manufacturer").
WITNESSETH
WHEREAS, Manufacturer is willing to appoint Distributor, and
Distributor is willing to be so appointed as Manufacturer's
exclusive distributor, subject to Section 2(a) of this Agreement,
of the "Products" (as hereinafter defined) in the "Territory" (as
hereinafter defined), subject to all of the terms and conditions
contained in this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration receipt of which is hereby acknowledged,
Manufacturer and Distributor hereby agree as follows:
1. DEFINITIONS
(a) "Intellectual
Property" means any and all tangible and intangible·
domestic and international (i) works of authorship. Including
copyrights, moral rights, and mask works: {ill trademarks.
service marks, trade names, inventions, logos, slogans and domain
names: (iii) trade secrets and confidential information: (IV)
patents: (v) proprietary property (at every kind and nature
throughout the world and however designated) whether arising by
operation of law. contract. license, or otherwise: and (VI)
registrations, initial applications, renewals, extensions,
continuations, divisions or reissues of the foregoing now or
hereafter in force.
(b) “Intellectual
Property Rights" means any and all rights in and to Intellectual
Property.
(c) "Minimum
Purchase Requirement(s)" means the minimum Quantities of Products
which Distributor agrees to purchase more particularly described
and set forth inExhibit "A" attached hereto and made a part
hereof.
(d)
"Product(s)" means only Wireless Disposable 8attery LED Switch and
Outlet Covers Products including generation 1 (switch and outlet
plates that activate when power goes out); generation 2 (switch and
outlet plates that activate when power goes out and can be used as
a nightlight).
(e) "Territory"
means: exclusive global distribution; provided, however,
exclusivity is subject to Section 2(a) of this Agreement.
(f) "Purchase
Price(s)" means the price(s) for the Products established by
Manufacturer periodically, with the Initial Purchase Prices being
identified and set forth in Exhibit "8" attached hereto and made a
part hereof.
(g) "Term"
means the period of time during which this Agreement shall remain
in full force and effect (Including any renewals thereof), with the
initial Term commencing on the Effective Date and ending three (3)
years later. The option ofadditional years will be based on
performance and market penetration and mutual agreement as
determined by the Distributor and the Manufacturer.
1
2. APPOINTMENT
(a) Subject
to all of the terms and conditions contained in this Agreement,
Manufacturer herebyappoints Distributor, throughout the Term, as
Manufacturer's exclusive distributor of the Products in the
Territory, and Distributor hereby accepts such appointment;
provided, however, in the event that a minimum purchase requirement
is not agreed to by the Manufacturer and the Distributor upon the
expiration of the Evaluation Period, then the exclusivity provided
by this Agreement shall expire and this Agreement will continue on
a nonexclusive basis.
(b) Distributor
acknowledges that its appointment hereunder is exclusive.
(c) Distributor
shall not sell, offer for sale or solicit orders to sell any
products competitive with Products of Manufacturer.
(d) Distributor
hereby agrees not to sell, market, distribute or in any other
manner supply the Product, directly or indirectly, to any parties
outside the Territory.
(e) Distributor
is an independent purchaser and seller of the Products. Distributor
shall not be considered an agent or legal representative of
Manufacturer for any purpose. In this regard, Distributor shall
have no authority to create any obligation or responsibility on
behalf of Manufacturer.
3. OBLIGATIONS
OF DISTRIBUTOR
Distributor shall, at its sole cost and expense and in connection
with its activities hereunder in the Territory:
(a) exercise
its best efforts to maximize the sale of the Products to customers
in the Territory;
(b) provide
appropriate storage (facilities, in accordance with all applicable
regulations and reasonable directions given by Manufacture to
Distributor from time to time, for all Products acquired hereunder.
and keep all Products in good condition and free from all damage
and contamination which might detract from their performance.
(c) maintain
an active sales program and employ trained sales personnel for the
sale of theProducts;
(d) make
no warranties on behalf of Manufacturer with respect to the
Products. and incur no liability on behalf of Manufacturer, or in
any way pledge or purport to pledge Manufacturer's credit, or
describe or hold itself out as an agent or legal representative of
Manufacturer;
(e) conduct
its business in strict compliance with all governmental laws.
ordinances, rules, regulations and other requirements, now in
existence or hereinafter enacted, applicable to the sale of Product
from Manufacturer to Distributor and in the performance of duties
hereunder, including but not limited to U.S. laws and regulations
governing exports under the Export Administration Act, the Foreign
Corrupt Practices Act and anti-boycott regulations (copies of such
laws will be provided upon request); and 2
(f) obtain
all' import licenses and government approvals necessary to permit
the sale by Manufacturer and purchase by Distributor of products,
as well as obtain approvals from banking and government authorities
as may be necessary to ensure payment to Manufacturer in U.S.
Dollars.
4. FORECASTS
Distributor shall furnish to Manufacturer. by not later than the
tenth (10th) day of each month a non-binding purchase forecast for
its requirements of Products for the following one hundred twenty
(120) days.
5. ORDERS
(a) Distributor
shall submit to Manufacturer. for Manufacturer's acceptance. firm
written purchase orders for the Products (signed by a duly
authorized representative of Distributor) within not less than
FortyFive (45) days prior to the desired delivery date, which
shall be understood to mean date of shipment from Manufacturer's
plant, unless otherwise specified in the purchase order. The terms
and conditions of such purchase orders shall be as set forth in
this Agreement and in Manufacturer's then-current terms and
conditions of sale.
(b) All orders shall
specify a delivery date and place, which shall be a FOB Port,
unless otherwise agreed. Manufacturer shall confirm each such firm
written purchase order, including delivery date and place. unless
such order does not reasonably correspond to the purchase forecast
referred to above. Upon confirmation by Manufacturer in writing of
its acceptance of each firm written purchase order, each such order
shall be a binding purchase commitment on the part of Distributor
and a binding supply commitment on the part of Manufacturer at the
applicable Purchase Price.
6. PRICES
(a) All
Purchase Prices shall be payable in U.S. Dollars and shall be
F.O.B. Port, as designated by Manufacturer. Distributor shall bear
and pay any and all (i) expenses, including freight. Insurance and
transportation from the port of embarkation to Distributor's
warehouse and (ii) present or future local sales, use, excise or
other similar tax or levy, including Import tariffs and duties,
applicable to the sale, use or transportation of the Products.
(b) Manufacturer
shall establish the Purchase Prices periodically with the initial
Purchase Prices being those set forth in Exhibit "B" hereto.
Manufacturer reserves the right to negotiate an increase or
decrea
|
