EXHIBIT 4.2
Master Dealership and Resale Agreement
MASTER DEALERSHIP & RESALE AGREEMENT
This Agreement is entered into as of the 28th day of April, 2004.
AMONG:
Crystal Clear (C.C.) Window Works (Canada) Inc., a company
incorporated under the laws of Canada whose principal place of
business is 00 Xxxxxxx Xxxxx, Xxxx X, Xxxxxx, Xxxxxxx, Xxxxxx,
X0X 0X0
(hereinafter called "C.C. Canada")
- and-
Crystal Clear (C.C.) Window Works Inc., a company incorporated
under the laws of Canada whose principal place of business is 00
Xxxxxxx Xxxxx, Xxxx X, Xxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0
(hereinafter called "Crystal Clear") (ix) (hereinafter together
called the "Company") (x) - and- (xi) Master Distribution Systems
Inc. a corporation incorporated under the laws of the State of
Nevada, whose registered and records office is located at 000
Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, 00000.
((hereinafter called the "Master Dealer")
WHEREAS:
A. CCWW has certain information, tools and methods that can be used to
provide services to restore, repair, and renew residential and
commercial insulated glass units ("IGUs") in windows and patio doors
by applying thermal pane moisture control systems to remove moisture
and condensation, restore insulation value (R value) and prevent the
re-occurrence of condensation in IGUs and the further degradation of
failed IGUs in place;
B. The Company carries on the business of manufacturing Micro Filters and
Defog Valves, , training and certification of Technicians to perform
the Services, packaging and distribution of Products required to
provide the Services;
C. The Master Dealer carries on the business of establishing resale
opportunities for specific types of dealerships by buying multiple
dealerships, marking up and reselling some dealerships outright, and
developing and operating some of the dealerships as a master dealer;
D. The Master Dealer desires the opportunity of utilizing the Know-how
and the technical training offered by the Company and understands the
importance of maintaining the Company's high and uniform standards and
specifications with respect to the Services, and, in order to preserve
the goodwill attached to the Trade-marks, the Master Dealer agrees to
operate its authorized dealerships in conformity with the Company's
standards and specifications and to comply with the terms and
conditions set forth in this Agreement; and
1
E. The Master Dealer agrees to purchase Fifty (50) Dealerships (a copy of
a Dealership Agreement is attached hereto as Schedule A) over a period
of Twenty-Four (24) months, commencing the 1st day of May, 2004. The
Company and the Master Dealer agree that the Master Dealer will act as
the exclusive authorized reseller for the Company's developed Services
and Products, during the Term and any Renewal Term of this Agreement,
by the Master Dealer establishing Dealers to market and provide the
Services and reselling specific Dealership Agreements owned by the
Master Dealer. This exclusivity applies in all jurisdictions other
than the United States of America and Canada.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements contained herein, and subject to the terms and conditions hereinafter
set out, the parties agree as follows:
DEFINITIONS
As used in this Agreement, the words and phrases defined in the preamble shall
have the meaning specified there and the following words and phrases shall have
the following meanings:
"Affiliate" of a party means a person or entity that controls, is
controlled by or is under common control with the party.
"Agreement" means this Master Dealership and Resale Agreement together
with Schedule A (Dealership Agreement) and any amendments agreed by the
Parties and executed in accordance with the terms hereof.
"Company Dealership Price" means the price for a Dealership in Canada
specified in Section 3.1 as such may be amended by the Parties pursuant to
Section 3.7 hereof for the sale of Dealerships to third parties.
"Company Services" has the meaning specified in Section 9.
"Confidential Information" of a Party means the terms of this
Agreement and all non-public data and information relating to that Party's
intellectual property, know-how, business, strategies, plans, customers,
operations and management disclosed by that Party to the other Party
pursuant to or as a result of this Agreement, including but not limited to
proprietary information, trade secrets technology and accounting records
but does not include information that (a) is or becomes generally available
to the public other than as a result of the receiving Party's breach of its
obligations hereunder; or (b) was already in the rightful possession of the
receiving Party without an obligation of confidence before it was received
from the disclosing party.
"Dealer" means a dealer authorized by the Company to sell Products
which has entered into an agreement with the Company substantially in the
form of the Dealership Agreement.
"Dealership" means the right to sell Products pursuant to the
Dealership Agreement.
"Dealership Agreement" means an agreement with the Company by which a
person is appointed to act as an authorized Dealer in substantially the
form attached as Schedule A to this Agreement.
"Defog Valve" means the Product made available by the Company to
Dealers for use in supplying the Services.
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DEFINITIONS - continued
"Escrow Agreement" means an agreement between the Company and a
reputable escrow agent to hold certain product-related information in
escrow, for the benefit of Dealers, as required by the terms of the
Dealership Agreement.
"Gross Receipts" has the meaning specified in Section 9.1.
"Joint Marketing Plan" means the joint marketing plan for selling
Distributorships agreed by the Parties pursuant to Section 10.3.
"Know-how" means confidential information, methods and tools relating
to the Services and Products supplied by CCWW to its dealers, including
without limitation the information contained in the CCWW manuals and any
improvements and any intellectual property rights of CCWW related to the
Services and Products;
"Micro-Filter" means the Product made available by the Company to
Dealers for use in connection with the Services.
"Monthly Fees" has the meaning specified in Section 9.1.
"Monthly Report" has the meaning specified in Section 9.2.
"Party" means CCWW, Crystal Clear Canada and/or the Master Dealer.
"Person" means an individual, corporation, partnership, joint venture,
trust, association, unincorporated organization, governmental authority or
other juridical entity.
"Products" means the products sold or authorized by the Company for
use in connection with the Services.
"Renewal Term" means a renewal term of this Agreement as specified in
Section 5.
"Technician" means a technician who has successfully completed the
Training Program and is certified by the Company to provide technical
services as part of the Services.
"Term" means the term of this Agreement as specified in Section 5.
"Trade-marks" means the name "Crystal Clear" and such other
trade-marks, service marks, trade names, logos, designs, symbols, emblems
and slogans owned or used by Crystal Clear or C.C. Canada as they advise
the Dealer are for use in connection with the Services and the Products.
"Training Program" means the program of training determined by the
Company from time to time as necessary to qualify an individual as a
Certified Technician.
APPOINTMENT
Subject to the following terms and conditions, the Company appoints the Master
Dealer as the authorized reseller of its (the Master Dealer's) Dealerships
during the Term and any Renewal Term of this Agreement. The Master Dealer is the
exclusive reseller in all territories other than the United States of America
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APPOINTMENT - continued
and Canada and has the non-exclusive right to resell its Dealerships in the U.S.
and Canada. The Parties acknowledge that notwithstanding the appointment of the
Master Dealer as exclusive reseller outside the U.S. and Canada, nothing in this
Agreement prevents the Company from carrying on its business or appointing
dealers in any territory.
PRICE AND TERMS
Over the Term of this Agreement the Master Dealer will purchase fifty (50)
Dealerships at the price determined in accordance with Section 0 for Dealerships
outside Canada and at one of the following prices for Dealerships in Canada:
Twenty Five Thousand Canadian Dollars (CAD $25,000.00) for a 2
Technician Dealership (a discount of approximately thirty percent
(30%) over the current $35,000.00 cost of a 2 Technician Dealership)
("Dealership A"); or
Thirty Five Thousand Canadian Dollars (CAD $35,000.00) for a 4
Technician Dealerships (a discount of approximately thirty percent
(30%) over the current $50,000.00 cost of a 4 Technician Dealerships)
("Dealership B").
Dealership A is defined as the Crystal Clear Dealership, a copy of which is
attached hereto as Schedule A, which dealership package includes a 2 Week
Training Program for 2 technicians, including any certification fees, together
with 2 complete sets of Installation Kits, and sufficient supplies of Products
for the rendering of approximately 30 days of Services.
Dealership B is defined as the Crystal Clear Dealership, a copy of which is
attached hereto as Schedule A, which dealership package includes a 2 Week
Training Program for 4 technicians, including any certification fees, together
with 4 complete sets of Installation Kits, and sufficient supplies of Products
for the rendering of approximately 30 days of Services.
For Dealerships sold outside of Canada, which shall be in US dollars, the same
pricing formulae shall apply, but in that particular currency. For example, if
the Company sells Dealerships in the US for USD $35,000.00 and USD $50,000.00
respectively, for the equivalent of Dealerships A and B, the Master Dealer will
pay USD $25,000.00 and USD $35,000.00 respectively. If the Company increases the
price of its Dealerships in the US, the price to the Master Dealer will not
change during the Term and if the Company decreases the price of its
Dealerships, the Master Dealer will continue to receive a thirty percent (30%)
discount from the Dealership price charged by the Company.
Over the Term of this Agreement the Master Dealer agrees to purchase the fifty
(50) Dealerships at the minimum rate of:
------------------- ------------------- ----------------- ---------------------
Date # of Dealerships Date # of Dealerships
------------------- ------------------- ----------------- ---------------------
May 1, 2004 0 May 1, 2005 2
------------------- ------------------- ----------------- ---------------------
June 1, 2004 0 June 1, 2005 2
------------------- ------------------- ----------------- ---------------------
July 1, 2004 1 July 1, 2005 3
------------------- ------------------- ----------------- ---------------------
August 1, 2004 1 August 1, 2005 3
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PRICE AND TERMS - continued
------------------- ------------------- ----------------- ---------------------
September 1, 2004 1 September 1, 2005 3
------------------- ------------------- ----------------- ---------------------
October 1, 2004 1 October 1, 2005 3
------------------- ------------------- ----------------- ---------------------
November 1, 2004 1 November 1, 2005 4
------------------- ------------------- ----------------- ---------------------
December 1, 2004 1 December 1, 2005 4
------------------- ------------------- ----------------- ---------------------
January 1, 2005 1 January 1, 2006 4
------------------- ------------------- ----------------- ---------------------
February 1, 2005 1 February 1, 2006 4
------------------- ------------------- ----------------- ---------------------
March 1, 2005 1 March 1, 2006 4
------------------- ------------------- ----------------- ---------------------
April 1, 2005 1 April 1, 2006 4
------------------- ------------------- ----------------- ---------------------
Payments for the Dealership purchases will be made as follows:
Payments for the monthly minimum Dealership purchases will be made on
the first day of the month in which the Training Program made
available by the Company for Technicians, commences. The Company will
forward to the Master Dealer, by fax or e-mail, ten (10) days before
the end of the month the training schedule for the next month. If no
Training Program is scheduled for the next month then the payment for
the monthly minimum Dealership purchase will not be due until the
first day of the month in which the next Training Program commences.
Payments for Master Dealer orders for Dealerships other than the
minimum Dealership purchases will be paid for in full on the same date
that the Training Program made available by the Company for the
Technicians, commences.
All payments will be made by check, money order, or other immediate
payment method acceptable to both parties.
In the event of any delay in making payment for Dealership purchases
the Master Dealer shall pay interest calculated on a daily basis on
the overdue payment from the date such payment was due to the date of
actual payment at the rate of one and a half percent (1 1/2%) per
month (eighteen percent (18%) per annum).
In the event that the Master Dealer fails to meet the timetable for purchase of
Dealerships, Company may terminate the Master Dealer's exclusivity herein on no
less than 120 days' prior written notice to the Master Dealer, such termination
to be effective upon expiry of the 120 day notice period unless the Master
Dealer has remedied its failure to meet the timetable within the 120 day period.
If the Master Dealer has not completed the sale of 50 Dealerships by the end of
the Term, the Company shall be under no obligation to agree to any renewal of
this Agreement.
In the event the Company decides not to deliver or is unable to deliver the
Training Program that is currently part of the Dealership A and B packages, the
Company will make adjustments to the prices paid by the Master Dealer to the
Company to ensure that the Master Dealer does not incur any additional costs for
establishing its Dealerships.
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PRICE AND TERMS - continued
Within 30 days of the commencement of the Renewal Term, the Parties agree to
define a schedule of minimum monthly purchases that would be followed during
that 24 month period.
Both the Company and the Master Dealer agree to jointly review the Company
Dealership Prices, from time to time, at the request of either Party and both
agree to act in good faith in jointly establishing the Company Dealership Price.
Both the Company and the Master Dealer agree to market Dealerships in Canada
only at the Company Dealership Price, as established from time to time by
agreement of the Parties, provided that in the event of any price increase in
the Company Dealership Price during the Term, the Company shall not increase the
price of Dealerships to the Master Dealer, except as outlined in Article 5.
RIGHTS AND OBLIGATIONS OF THE PARTIES
This Agreement sets out the Parties' rights and obligations related to the
resale of Dealerships. When the Master Dealer purchases a Dealership, the Master
Dealer shall enter a Crystal Clear Dealership Agreement (in the form of Schedule
A attached hereto) which defines the rights and obligations of the Parties, as
it relates to the operation of a Dealership, including the purchase and sale of
Products and rights to use the Know-how and Trade-marks. The Parties acknowledge
that nothing in this Agreement grants to the Master Dealer any right or interest
in, or entitlement to use, the Know-how, Trade-marks or any other intellectual
property of the Company, other than the rights to use the Trademarks expressly
set out herein.
In the event that the Company, by reason of insolvency or bankruptcy, should
fail to continue to provide adequate Product support for its Dealers the Company
has established an irrevocable Escrow Agreement with an independent third party
trustee holding all of the data and source information needed to manufacture or
purchase products equivalent to the Products. Each Dealer shall be made a party
to this Escrow Agreement during the term or renewal term of their Dealerships.
TERM AND RENEWAL TERM
Unless terminated earlier in accordance with Section 14 hereof, this Agreement
shall be in effect for a period of twenty-four (24) months from the date of the
signing of this Agreement ("Term"). However, if the Master Dealer has completed
the purchase of the 50 Dealerships, prior to the expiration of the Term, the
Parties agree to extend this Agreement for an additional twenty-four (24) month
term ("Renewal Term") from the date the last of the 50 Dealerships was
purchased. The only change in this Agreement, during the Renewal Term, will be
that the prices, as set forth in Section 2 herein, shall be based on the then
current Company Dealership Prices, with a thirty per cert (30%) discount to the
Master Dealer.
RELATIONSHIP OF THE PARTIES
The Master Dealer's relationship to the Company will be that of an independent
contractor engaged in purchasing the Dealerships either for its own operation
and management as a Dealership, or for resale to the Master Dealer's customers.
The Master Dealer shall have no authority to assume or create any obligation
whatsoever, express or implied, in the name of the Company, its Affiliates or
licensors, nor to bind the Company, its Affiliates or licensors in any manner
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RELATIONSHIP OF THE PARTIES - continued
whatsoever. The Master Dealer shall have no authority to enter into any contract
on behalf of the Company. The Master Dealer undertakes and agrees that it will
not furnish to any customer, Dealer or prospective Dealer, any warranty,
undertaking or guarantee whatsoever including with respect to the Company, a
Dealership or the Products which may give rise to responsibility of the Company,
its licensors or Affiliates. The Master Dealer shall indemnify and save harmless
the Company, its Affiliates and licensors and their respective officers,
directors, agents and employees from and against all claims, demands, damages,
costs or losses whatsoever arising as a result of a breach by the Master Dealer
of its obligations under this Section 6.
In the event that as a result of any breach by the Master Dealer of its
obligations hereunder, a Dealer fails or refuses to make any payment to the
Company as required pursuant to the Dealership Agreement, the Master Dealer
shall be responsible for paying the Company all such amounts.
The Master Dealer and its employees are not agents or legal representatives of
the Company for any purpose and have no authority to act for, bind or commit the
Company.
The Master Dealer and the Company agree that this Agreement does not establish a
franchise, joint venture or partnership.
RESTRICTIVE COVENANTS
The Company and the Master Dealer both covenant and agree to execute a
non-solicitation agreement in favour of the other, and both parties covenant and
agree that neither party will do anything that could be considered, in any
manner whatsoever, interference with any potential contractual relationships.
All prospects for Dealerships introduced by either Party shall be fully
protected from any offers of any kind by the other Party, unless with the
written mutual consent of all three parties. In order to limit any potential
interference, the Master Dealer agrees to submit to the Company, every 30 days,
its list of potential dealers. The named Dealership prospects will not be
contacted by the Company, unless it receives written authorization from the
Master Dealer, for a period of 120 days from the date the list is received by
the Company. At the end of the 120 day period, the Company will not negotiate
with the prospect unless the Company first notifies the Master Dealer that the
Company is intending to deal directly with the prospect and gives the Master
Dealer 30 days to respond advising whether an agreement has been reached with
the prospect. If no agreement has been reached, the Company may negotiate
directly with the prospect. Thereafter this Section 7.1 will not limit the
Parties' ability to negotiate or enter into other agreements.
The Master Dealer covenants and agrees that during the Term and any renewals or
extensions thereof, except as otherwise provided in writing by the Company, the
Master Dealer shall not, either directly or indirectly, for itself, or through,
on behalf of, or in conjunction with any Person or entity:
divert or attempt to divert any business or customer for the Services
to any competitor of the Company, by direct or indirect inducement or
otherwise, or do or perform, directly or indirectly, any other act
injurious or prejudicial to the goodwill associated with the
Trade-marks, Services and Products;
employ or seek to employ or accept the services of any person who is
at that time employed by the Company, its Affiliates or licensors or
7
RESTRICTIVE COVENANTS - continued
by any other Company dealer, or otherwise directly or indirectly
induce such person to leave his or her employment thereat, without the
prior written consent of the Company and the other Company dealer; or
own, maintain, operate, engage in, be concerned with, lend money to,
guarantee the debts of or permit its name to be used or employed in
connection with or have any interest in, whether as employee, owner,
investor, partner, shareholder, director, officer, or otherwise, any
business engaged in the provision of services that could be considered
to be in competition to the Company's business or the sale of products
ancillary thereto.
The Master Dealer covenants and agrees that for a period of five (5) years after
the expiration or termination of this Agreement, regardless of the cause of
termination, except as otherwise approved in writing by the Company, the Master
Dealer will not, either directly or indirectly, for itself or through, on behalf
of, or in conjunction with any Person, either as a reseller or in any other
capacity, own, maintain, operate, engage in, be concerned with, lend money to,
guarantee the debts of or permit its name to be used or employed in connection
with carrying on or be engaged in or in any other manner whatsoever have any
interest in or advise, whether as employee, owner, investor, partner,
shareholder, director, officer or otherwise, any business engaged in the
provision of services that could be considered to be in competition with the
Company's business within a radius of twenty five (25) kilometres from:
the Master Dealer's own business premises, or
the business premises of a Dealer.
The Master Dealer agrees that the restrictions contained in this Section 7 are
reasonable and valid and all defences to the strict enforcement thereof by the
Company are hereby waived.
The Company acknowledges that the Master Dealer may market other products,
provided that those products are not in competition with the Products and
Services sold by Dealerships.
COMPANY OBLIGATIONS TO MASTER DEALER AND WARRANTIES
Dealerships purchased by the Master Dealer from the Company shall in all
respects be substantially similar to all of the other Dealerships, with each
Master Dealer owned Dealership and each Dealership that the Master Dealer has
resold (resale will be by way of assignment by the Master Dealer of a specific
Dealership as detailed in Section 17 of the Dealership Agreement) with the
exception that prior to expiry or termination by the Company of the Dealership
resold by the Master Dealer, the Company shall first give reasonable opportunity
to the Master Dealer to cure any default(s) in any Dealerships. In the event
that a Dealership is not renewed, that Dealership will be re-assigned back to
the Master Dealer for the duration of the original term and any renewal term(s)
of the Dealership Agreement remaining. If a Dealership that is re-assigned to
the Master Dealer pursuant to this Section 8.1 is subsequently re-sold by the
Master Dealer, the Company and the Master Dealer will share the gross re-sale
proceeds on a 50%-50% basis.
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COMPANY OBLIGATIONS TO MASTER DEALER AND WARRANTIES - continued
The Company, at its sole reasonable discretion, may choose not to accept a
Dealership prospect if, in its judgement, the territory to be serviced by the
Dealership prospect is being adequately serviced by existing certified
Dealerships.
Except as expressly set out in this Agreement or the Dealership Agreement, the
Company makes no representations, warranties or conditions concerning the
Products, the Services, the Trade-marks, Know-how or any other matter. The
Master Dealer acknowledges that it is aware of the claims raised by Xxxxxxx
Xxxxxxx, Amanak Radiation Thermal Bonding Equipment Ltd., Xxxxxxx XxXxxxx and
XxXxxxx Enterprises Inc. in the Statement of Claim issued in the Ontario Supreme
Court of Justice, Court File No. 04-CV-264048 CM (the "Law Suit") and has been
given the copies of the pleadings and an opportunity to request such further
information as CCWW may have concerning the Law Suit. Subject to Section 0
below, the Master Dealer hereby fully releases and discharges the Company and
its Affiliates and their respective officers, directors, employees and agents
from any and all claims for damages and losses the Master Dealer may have
arising as a result of the Law Suit or any matter raised in the Law Suit
including all claims for damages and consequential losses that may result from
any judicial determinations or other dispositions made in respect of the Law
Suit.
In the event that the Master Dealer is named as a party to the Law Suit, CCWW
shall have conduct of the Master Dealer's defence and shall in its sole
discretion decide what steps, if any, to take in relation to the Law Suit,
including in relation to any settlement, and shall indemnify and save harmless
the Master Dealer, its directors, officers, employees and agents against all
legal costs incurred in the conduct of the Law Suit and any damages that may be
awarded by the court against the Master Dealer in the Law Suit. The Master
Dealer agrees to co-operate fully with CCWW in the defence of the Law Suit.
PAYMENT TO MASTER DEALER FROM THE COMPANY
The Company or its assignee shall pay to the Master Dealer a fee, pursuant to
this Agreement, which shall be thirty three and one third (33 1/3 %) per cent of
the Gross Receipts (as defined herein) ("Monthly Fees"). Monthly Fees are
exclusive of any sales, commodity or other taxes (including without limitation
Goods and Services Tax) which shall, where applicable, be paid in addition.
Gross Receipts, means the aggregate sales revenue of or derived by the
Company from everything sold or provided to the Master Dealer's
Dealerships, throughout the terms and renewal term(s) of these
Dealerships and this applies whether or not the Master Dealer has
resold a particular Dealership. Without in any way limiting the
foregoing, "Gross Receipts" means the revenue from the sale of
products and supplies (as detailed in Schedule A of the Dealership
Agreement), training fees, and equipment (the "Company Services") that
these Dealerships purchase from the Company, but does not include
Royalty Fees, as defined in the Dealership Agreement.
Payments of Monthly Fees to be made by the Company or its assignee under this
Agreement shall be paid to the Master Dealer within thirty five (35) days of the
end of each month in respect of all Gross Receipts in the previous month. The
Company shall promptly comply with the terms of sale for any Products and
Company Services and immediately record any and all sales data of Service and
Products in the Company's accounting system and supply the accounting and sales
data, relative to the Master Dealer's Dealerships, to Master Dealer on a monthly
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PAYMENT TO MASTER DEALER FROM THE COMPANY - continued
basis, during the Term of this Agreement. The Company shall provide an accurate
report of the Gross Receipts during that month, the price of each product or
other service provided and the amount of Monthly Fees payable and such other
information as the Master Dealer may reasonably request (the "Monthly Report").
In the event of any delay in making payment of these Monthly Fees the Company or
its assignee shall pay interest calculated on a daily basis on the overdue
payment from the date such payment was due to the date of actual payment at the
rate of one and a half percent (1 1/2%) per month (eighteen percent (18%) per
annum).
The Company shall keep true and accurate records of all revenues and
transactions necessary for calculating the amounts payable to the Master Dealer
under this Agreement and which form the basis for the Monthly Report. The
Company shall maintain such records for a minimum of two (2) years following the
end of the Term of this Agreement or any Renewal Term. The Master Dealer shall
be entitled to inspect the records upon reasonable notice (72 hours) to the
Company during normal business hours and to take copies of any such records or
excerpts of such records. The Company shall promptly pay the Master Dealer the
amount of any underpayment of Monthly Fees identified as a result of such
inspection and the Master Dealer shall immediately reimburse the Company the
amount of any overpayment. The Master Dealer shall bear the costs of any
professional charges incurred for such inspection, unless the inspection reveals
a discrepancy of more than five percent (5%) from the amount actually paid, in
which case such costs shall be borne by the Company.
The provisions of this Section 9 shall continue to apply, notwithstanding the
termination or expiry of this Agreement, until the settlement of all claims of
the Master Dealer.
PROMOTION AND SUPPORT
The Master Dealer will use its best efforts in good faith to promote, market and
assist the Company in the development of a network of Dealerships, so as to
create the largest volume of profitable business for the Company, to ensure the
highest quality of sale support and to promote the goodwill, name and interest
of the Company and all of the Dealerships. The Master Dealer will train and
maintain an adequate number of its own head office employees to properly
promote, demonstrate, sell and provide post-sale support of the Dealerships that
it resells and to otherwise carry out its obligations under this Agreement.
The Master Dealer will ensure that its employees use only approved Company
marketing and promotional materials in order to ensure that there is no
misleading information being directed to potential dealers.
The Company and the Master Dealer shall cooperate in the areas of marketing,
promotion, and training and sales as follows:
Marketing. The Company and the Master Dealer shall work cooperatively
to establish a Joint Marketing Plan in which they agree, at a minimum,
on the activities necessary to assess viable market segments,
applications, and potential customers, including planning to meet
future market needs. Each Party shall work diligently to carry out its
respective obligations under the Joint Marketing Plan. The Master
Dealer shall not undertake any marketing activities other than those
in the Joint Marketing Plan without the prior written approval of the
Company.
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PROMOTION AND SUPPORT - continued
Promotion. The Company will assist the Master Dealer with its
marketing by ensuring an adequate supply of the Company's promotional
materials, providing assistance in putting on seminars, 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 the Company.
Training and Sales. As part of the sales and marketing effort
established in this Agreement, the Master Dealer may establish a
Company-approved training facility that would be available for
technical training for the Master Dealer's own Dealerships and for
training for other Dealers as well. The Master Dealer agrees that in
order to establish a Company approved training facility the Company
may, at its discretion, charge the Master Dealer a license fee for the
use of the Company's current and future Training Program.
TRADE XXXX; LICENSING
From time to time, the Company may designate one or more Trade-marks as
available for the Master Dealer's use, and will provide standards for that use,
in the Company materials. Subject to the terms and conditions of this Agreement,
the Company authorizes the Master Dealer to use the Trade-marks during the Term
or any Renewal Term.
The Master Dealer will use the Trade-marks in accord with these standards solely
in advertising and promoting the Company Dealerships, in good taste and in a
manner that preserves their value and the Company's rights to them.
The Master Dealer will not use any Trade-xxxx in its business or trading name or
in any way that implies the Master Dealer is an agency or branch of the Company.
The Master Dealer will immediately change or discontinue any use of a Trade-xxxx
as requested by the Company.
The Master Dealer has no right, title or interest in any Trade-xxxx. Any rights
in any Trade-xxxx and any goodwill associated with a Trade-xxxx acquired through
the Master Dealer's use belong solely to the Company. Master Dealer shall
include such proprietary notice as the Company may require whenever the
Trade-marks are used and shall take all such steps and execute such documents as
the Company may require to give effect to the Company's ownership of the
Trade-marks hereunder.
The Master Dealer is granted the right to distribute materials supplied by the
Company in accord with the license terms supplied with these materials. The
Master Dealer may also use the materials for demonstration purposes in accord
with those license terms.
Upon expiry or termination for any reason of this Agreement, the Master Dealer
shall immediately cease all use of the Trademarks and shall return to the
Company all pamphlet s, brochures, and other marketing materials which use any
of the Trademarks.
NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
Confidential Information. During the Term, any Renewal Term and thereafter, each
Party agrees to maintain the confidentiality of all Confidential Information
11
NON-DISCLOSURE OF CONFIDENTIAL INFORMATION - continued
disclosed to it by any other Party and shall not disclose any such Confidential
Information without the prior written consent of the disclosing Party.
Confidentiality. With respect to all Confidential 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 the Party 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 Confidential Information of their obligations with respect to the
information; and (4) use the Confidential Information only in connection with
the terms of this Agreement, except as may otherwise be agreed to by the Parties
in writing.
Disclosure of Information. In the event a Party to whom Confidential Information
has been disclosed proposes to disclose that Confidential Information to an
outside consultant or agent, it shall obtain the consent of the Party from whom
the Confidential 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 Confidential Information was originally
received. Such approval shall not be unreasonably withheld.
Return of Information. Confidential Information shall be deemed the property of
the disclosing Party and, upon request, the other Party will return all
Confidential Information that is in tangible form to the disclosing Party or
destroy all such Confidential Information.
GENERAL
Enforcement. Either party's failure to enforce any provisions of this Agreement
will not be deemed a waiver of that provision or of the right to enforce it in
the future.
Entire Agreement. This Agreement contains the entire and only understanding
regarding the Dealer resale relationship between the Company and the Master
Dealer and supersedes all previous representations, writings, negotiations and
understanding with respect thereto.
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.
Notices. All notices, demands or consents required or permitted under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered personally or transmitted by facsimile with confirmed receipt, or by
e-mail with confirmed receipt, or mailed first-class, postage prepaid, to the
addresses, fax number or e-mail indicated below, or at such other addresses as
either party may specify by written notice to the other.
Crystal Clear (C.C.) Window Works (Canada) Inc.
Address: 00 Xxxxxxx Xxxxx, Xxxx X, Xxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0
Fax No.:000-000-0000
Email: xxxx@xxxxx.xxx
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GENERAL - continued
Crystal Clear (C.C.) Window Works Inc.
Address: 00 Xxxxxxx Xxxxx, Xxxx X, Xxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0
Fax No.: 000-000-0000
Email: xxxx@xxxxx.xxx
Master Distribution Systems Inc.
Address: 000 Xxxxxxxx, Xxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
Fax No.:000-000-0000
Email:xxx@xxxx.xxx
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.
Assignment. Any Party may assign this Agreement to an entity which acquires,
directly or indirectly, substantially all of its assets or merges with it.) The
Company may assign its rights and obligations under this Agreement in relation
to any jurisdiction to such other Person as may acquire the rights to sell
Dealerships in such jurisdiction. 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.
Choice of Law. This Agreement shall be governed by and construed in accordance
with the laws of the Province of Ontario and the laws of Canada applicable in
Ontario without regard to their conflicts of laws provisions.
Resolution of Disputes. The parties will endeavor to resolve all disputes
amicably through negotiation directly between the parties within 14 days after
one party gives the other party a notice of a dispute or claim. In the event
that the parties are unable to resolve their dispute within the said 14 day
period, all disputes arising under or in relation to this Agreement shall be
finally resolved by arbitration, by a single arbitrator, conducted in accordance
with the Simplified Arbitration Rules of the ADR Institute of Canada Inc. The
parties will co-operate with each other to cause the arbitration to be held in
as efficient and expeditious a manner as practicable. The place of arbitration
shall be Xxxxxxx, Xxxxxxx, Xxxxxx. The language of the arbitration shall be
English. Any award rendered by the arbitrator will be final and binding. The
Costs of the Arbitration shall be borne equally by both parties until such time
as the arbitrator has made his or her decision and the arbitrator shall be asked
by both parties to make an Order as to Costs and then Costs shall be born as
ordered by the arbitrator.
13
TERMINATION
Either the Company or the Master Dealer may terminate this Agreement by giving
the other Party sixty (60) days' prior written notice of its desire to do so if
the other Party:
commits a material breach of this Agreement which, if curable, is not cured
within thirty (30) days of receipt of written notice of the breach from the
terminating Party;
the other Party becomes bankrupt or insolvent or takes the benefit of any
statute for bankrupt or insolvent debtors or makes any payment, assignment or
arrangement with its creditors; or
a receiver, receiver and manager, or other officer with similar powers is
appointed for all or any material part of the other Party's property.
REPRESENTATION AND AUTHORITY
Each person signing below represents that he or she has read this Agreement,
understands its terms, is duly authorized to execute this Agreement on behalf of
the party indicated below by his or her name, and agrees on behalf of such party
that such party will be bound by those terms.
IN WITNESS WHEREOF the parties have duly executed this Agreement on the date
first above.
CRYSTAL CLEAR (C.C.) WINDOW WORKS (CANADA) INC.
Name: /s/Xxxx Xxxxxxxx
------------------------------
Xxxx Xxxxxxxx
Title: Authorized Signatories
MASTER DISTRIBUTION SYSTEMS INC.
Name: /s/Xxxxx Xxxxxxxxx
------------------------------
Xxxxx Xxxxxxxxx
Title: Authorized Signatories
14
