EXHIBIT 10.2
CO-MARKETING AGREEMENT
This Co-Marketing Agreement ("Agreement") is entered into as of the
21st day of August 2003 between and Radix Marine, a Nevada Corporation with its
principal place of business at 0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxxxx, 00000 (the "Company") and Norsco Marine, a State of Washington
Corporation, with its principal place of business in Kingston, Washington
("Company") ("Co-Marketer").
General Information
The Company and the Co-Marketer desire to work cooperatively to realize
the opportunities that exist in the Territory (defined below) for the Products
(defined below); and,
the Company and the Co-Marketer desire to co-market the Products to
potential customers within the defined Territory.
In consideration for the mutual promises, covenants, and Agreements
made below, the parties, intending to be legally bound, agree as follows:
1. Definitions
For purposes of this Agreement, the following terms will have the
indicated definitions:
"Agreement." This Agreement is by and between the Company and the
Co-Marketer.
"Products." Includes only those products listed on Exhibit A. The
Company may, at its option, modify the products listed on Exhibit A from time to
time by providing written notice to the Co-Marketer not less than thirty (30)
days prior to any such change.
"Territory." The geographical territory covered by this Agreement is
the Asia Pacific Region (Specify Territory).
"Term." The duration of this Agreement as provided in Section 2.
"Information." Any documentation, customer information or other
information disclosed by the party to the other that the disclosing party
considers proprietary. Such information may include, but is not limited to,
engineering, hardware, software, or other information that is not generally
known relating to the Products, and other information concerning financial,
accounting or marketing reports, analysis, forecasts, predictions or projections
relating to the Products and / or to the business of either the Company or the
Co-Marketer.
2. Term and Termination
2.1 Term. The initial term of this Agreement shall be for two years commencing
on the date first set forth above. Thereafter, renewal of the term of this
Agreement will be automatic unless written notice of the termination is received
by either party at least thirty 30 days prior to expiration. This Agreement
shall continue in effect as set forth herein unless otherwise modified or
terminated.
2.2 Termination. Either party may terminate this Agreement with or without cause
upon thirty (30) days prior written notice without liability of any kind to the
other party.
3. Co-Marketing Agreement
3.1 Joint Cooperation. The Company and the Co-Marketer shall cooperate in the
areas of marketing, promotion, training and sales as follows:
3.2 Marketing. The Company and the Co-Marketer shall work cooperatively within
the Territory to assess viable market segments, applications, and potential
customers for marine craft needs, including planning to meet future market
needs.
3.3 Promotion. The Company and the Co-Marketer shall plan and undertake joint
seminars, open houses, public relations events, press releases, testimonials,
demonstrations, and joint participation in trade shows, conventions and
conferences, when appropriate. The content of all promotional materials /
activities shall be subject to the advance written approval of both parties.
3.4 Training. As part of the sales and marketing effort established in this
Agreement, both the Company and the Co-Marketer shall provide training and
information to each party's assigned work force to provide an understanding of
its services / products, applications, organization, and procedures that are
relevant. The Management of each party shall each have the sole discretion to
determine the numbers, levels and skills of its personnel assigned to the
Co-Marketing program described in this Agreement, and the types of support
resources it shall make available. Expenses for this program will be borne by
the party incurring the expense unless otherwise agreed.
3.4 Referrals and Presentations. The Company and the Co-Marketer shall engage in
the exchange of customer leads, joint demonstrations and joint customer visits,
presentations, and proposals, when appropriate.
4. Company responsibilities
4.1 Products. The Company shall sell or lease the Products to the customers
pursuant to orders placed with the Company pursuant to the Co-Marketing efforts
of the parties under this Agreement in accordance with the Company's standard
documentation applicable to such a transaction, or any special contracts agreed
to by both parties in advance;
4.2 Information. The Company shall provide reasonable information and backup as
agreed to by the Company and the Co-Marketer in support of the customer
proposals, trials, pilot programs inquiries and service requests;
4.3 Install and Maintain Products. The Company shall provide delivery and
training for Products sold or rented as a result of the Co-Marketer's activities
under this Agreement at the Company's standard prices, if requested by the
Co-Marketer;
4.4 Demo Equipment. The Company shall provide the Products on a purchase or
lease basis to be used in customer demonstrations and pilot programs as part of
the marketing / sales process;
4.5 Training. The Company shall provide reasonable technical training on the
Products to the Co-Marketer's employees working with the Company at the
Company's facility at mutually agreed upon prices;
4.6 Collateral Materials. The Company shall provide reasonable quantities of
collateral materials as identified and agreed to by the Company and the
Co-Marketer in writing, in advance in support of the sales / marketing process;
5. Co-Marketer's Responsibilities
5.1 Support Obligation. The Co-Marketer shall train, deploy and otherwise
maintain a sales, engineering, fabrication and maintenance group for marine
craft products and services covered under this Agreement as appropriate to
respond to the Co-Marketer's customers requirements.
5.2 Market Services. The Co-Marketer shall market the products listed in Exhibit
A to meet the Co-Marketer's customers' marine craft requirements.
6. Non-Disclosure of Proprietary Information
6.1 Proprietary. Each party to this Agreement may find it beneficial to disclose
to the other party certain information. The parties understand and agree that
information disclosed pursuant to this Agreement shall be considered proprietary
because (1) it has been developed internally by the disclosing party, or (2) it
has been received by the disclosing party subject to a continuing obligation to
a third party to maintain the confidentiality of the information. Information
disclosed pursuant to this Agreement that either party considers proprietary and
that is provided in tangible form shall be marked confidential, proprietary or
private. If such information is orally disclosed, it shall be identified by the
disclosing party as being proprietary to that party in a writing sent to the
receiving party no more than five (5) days after disclosure.
6.2 Confidentiality. With respect to such information, the party to whom the
information is disclosed and its employees, consultants and other agents shall:
(1) hold the information in confidence and protect it in accordance with the
security measures with which it protects its own proprietary or confidential
information, which it does not wish to disclose; (2) restrict disclosure of the
information solely to those employees, consultants and other agents with a need
to know, and not disclose such information to any other persons; (3) advise its
employees, consultants and other agents with access to the information of their
obligations with respect to the information; and (4) use the information only in
connection with the terms of this Agreement, except as may otherwise be agreed
to by the parties in writing.
6.3 Non-Proprietary Information. The party to whom information is disclosed
shall have no obligation to treat as proprietary any information that: (1) was
previously known to the receiving party free of any confidentiality obligation;
(2) is disclosed to third parties by the disclosing party without restriction;
(3) is or becomes publicly available other than by the receiving party's breach
of its obligations; or (4) is independently developed by the receiving party.
6.4 Disclosure of Information. In the event a party to whom information has been
disclosed proposes to disclose that information to an outside consultant or
agent, it shall obtain the consent of the party from whom the information was
originally received and arrange for the execution by the consultant or agent of
a nondisclosure Agreement which has been approved by the party from whom the
information was originally received. Such approval shall not be unreasonably
withheld.
6.5 Return of Information. The information shall be deemed the property of the
disclosing party and, upon request, the other party will return all information
that is in tangible form to the disclosing party or destroy all such
information.
6.6 Disclosure to Affiliates. Except as specifically provided in this Agreement,
the parties agree not to provide information to any of their affiliated
companies, without the prior written consent of the party disclosing the
information.
7. General Provisions
7.1 Severability. If any provision of this Agreement is found invalid or
unenforceable under judicial decree or decision, the remainder shall remain
valid and enforceable according to its terms. Without limiting the previous, it
is expressly understood and agreed that each and every provision of this
Agreement that provides for a limitation of liability, disclaimer of warranties,
or exclusion of damages is intended by the parties to be severable and
independent of any other provision and to be enforced as such. Further, it is
expressly understood and agreed that if any remedy under this Agreement is
determined to have failed of its essential purpose, all other limitations of
liability and exclusion of damages set forth in this section shall remain in
full force and effect.
7.2 Notices. All notices, demands or consents required or permitted under this
Agreement shall be in writing and shall be delivered or mailed certified return
receipt requested to the respective parties at the addresses set forth above or
at such other address as such party shall specify to the other party in writing.
Any notice required or permitted to be given by the provisions of this Agreement
shall be conclusively deemed to have been received on the day it is delivered to
that party by U.S. Mail with Acknowledgment of Receipt or by any commercial
courier providing equivalent acknowledgment of receipt.
7.3 Other Agreements. The parties each may enter into Agreements similar to this
Agreement with other parties. Nothing in this Agreement shall be construed to
preclude the Company from selling or otherwise marketing any of its or another
party's products or services directly or indirectly to any other customer, or
through other distribution channels, either inside or outside the Territory.
7.4 Trademarks and Trade Names. Neither party shall use the name of the other
party in any news release, public announcement, advertisement or other form of
publicity without the prior written consent of the other party. The Company is
hereby granted permission to use the Co-Marketer's name in the Company's
promotional materials for the sole purpose of identifying the Co-Marketer as a
customer of the Company. The Co-Marketer is hereby granted permission to use
during the term of this Agreement the trademarks and trade names used by the
Company in connection with the Products and services covered by this Agreement.
Such permission is expressly limited to uses by the Co-Marketer necessary to the
performance of the Co-Marketer's obligations under this Agreement. The
Co-Marketer hereby acknowledges the Company's exclusive ownership of such marks
and names and that the Company's marks and names are renowned both worldwide and
specifically in the Territory. The Co-Marketer agrees not to take any action
inconsistent with such ownership and further agrees to take any action,
including without limitation the conduct of legal proceedings at the Company's
expense, which the Company reasonably deems necessary to establish and preserve
the Company's exclusive rights in and to its trademarks and trade names.
Reproductions of the Company's trademarks, logos, symbols, etc., shall be true
photographic reproductions.
7.5 Labels. The Co-Marketer will not remove, make or permit any alterations in
any labels or other identifying markings placed by the Company on any of its
Products covered by this Agreement.
7.6 No Rights. No rights to manufacture are granted by the Company to the
Co-Marketer under this Agreement. Moreover, no licenses are granted or implied
by this Agreement under any patents owned or controlled by the Company or under
which the Company has rights, except the right to co-market the Products and
services covered by this Agreement during the term and as contemplated herein.
7.7 Modifications in Products. The Company reserves the right to make design
modifications in any of the Products covered by this Agreement at any time, but
shall not be obligated to implement such modifications in the Products that have
previously been delivered to any of its or the Co-Marketer's customers.
7.8 Waiver, Amendment, Modification. No waiver, amendment or modification,
including those by custom, usage of trade, or course of dealing, of any
provision of this Agreement will be effective unless in writing and signed by
the party against whom such waiver, amendment or modification is sought to be
enforced. No waiver by any party of any default in performance by the other
party under this Agreement or of any breach or series of breaches by the other
party of any of the terms or conditions of this Agreement shall constitute a
waiver of any subsequent default in performance under this Agreement or any
subsequent breach of any terms or conditions of that Agreement. Performance of
any obligation required of a party under this Agreement may be waived only by a
written waiver signed by a duly authorized officer of the other party, that
waiver shall be effective only with respect to the specific obligation described
in that waiver.
7.9 No Warranties. The Co-Marketer hereby acknowledges that it has not entered
into this Agreement in reliance upon any warranty or representation by any
person or entity.
7.10 Entire Agreement. The parties acknowledge that this Agreement expresses
their entire understanding and Agreement, and that there have been no
warranties, representations, covenants or understandings made by either party to
the other except expressly set forth in this section. The parties further
acknowledge that this Agreement supersedes, terminates and otherwise renders
null and void any and all prior Agreements or contracts, whether written or
oral, entered into between the Company and the Co-Marketer with respect to the
matters expressly set forth in this Agreement.
7.11 Attorney Fees. If either party is required to retain the services of any
attorney to enforce or otherwise litigate or defend any matter or claim arising
out of or in connection with this Agreement, then the prevailing party shall be
entitled to recover from the other party, in addition to any other relief
awarded or granted, its reasonable costs and expenses (including attorney fees)
incurred in the proceeding.
7.12 Assignment. [x] (Either party may assign this Agreement to an entity which
acquires, directly or indirectly, substantially all of its assets or merges with
it.) Except as set forth in this section, neither this Agreement nor any rights
under this Agreement, in whole or in part, shall be assignable or otherwise
transferable by either party without the express written consent of the other
party. Any attempt by either party to assign any of its rights or delegate any
of its duties under this Agreement without the prior written consent of the
other party shall be null and void. Subject to the above, this Agreement shall
be binding upon and take effect for the benefit of the successors and assigns of
the parties to this Agreement.
7.13 No Joint Venture. This Agreement is not intended to create, nor shall it be
construed as, a joint venture, association, partnership, franchise or other form
of business or relationship. Neither party shall have nor hold itself out as
having any right or power or authority to assume, create, or incur any expense,
liability or obligation, expressed or implied, on behalf of the other party,
except as expressly provided herein.
7.14 Governing Law. This Agreement shall be governed by the laws of the State of
Washington applicable to Agreements made and fully performed in the State of
Washington by State of Washington residents.
7.15 Limitation of Liability. Neither the Company nor the Co-Marketer shall be
liable to each other or any third party claiming under them for incidental,
special, consequential, or other damages, including but not limited to lost
profits arising from an alleged breach or actual breach of this Agreement.
7.16 Survival. The obligations of the parties relative to the protection,
disclosure, and return and / or destruction of proprietary information, as
defined in Section 7.12 of this Agreement, shall survive and continue beyond the
expiration of this Agreement for a period of ten (10) years.
We have carefully reviewed this contract and agree to and accept its
terms and conditions. We are executing this Agreement as of the day and year
first written above.
Radix Marine, Inc. Norsco Marine, Inc.
By: ___________________________ By: _______________________
Xxxxxxxx Xxxxxx Name: _____________________
President Title: ______________________
Date: __________________________ Date: ______________________
Exhibit A
Description of the Products
