AvVaa World Health Care Products, Inc. Agreement For
Sales and Marketing Consulting With Xxxxx X. Xxxxxx
This Consulting Agreement (the "Agreement") is entered into and made
effective as of this 10th day of January 2005 (the "Effective Date"), and will
serve as the governing contractual agreement between AvVaa World Health Care
Products, Inc., ("avVaa") with offices at X.X. Xxx 000, 0000 Xxxxxxxxx Xx,
Xxxxxxxx, XX, Xxxxxx VOE 1WO, and Xxxxx X. Xxxxxx ("DJL") with offices at 0000
Xxxxxxx Xxxx, Xxxx Xxxxxx, XX 00000. Collectively, both parties will be referred
to as the "Parties".
WHEREAS, avVaa markets, manufacturers and distributes a range of
over-the-counter all-natural skin care products as defined in Exhibit "A"; and
WHEREAS, DJL seeks to be a consultant to avVaa and the Parties desire to
establish pursuant to this Agreement a mutually beneficial relationship through
which DJL has special knowledge of complimentary new products, sales & marketing
expertise to implement the avVaa Business Plan and skills relating to the
identity of specific potential Customers of the Products as defined in Exhibit
"B"; and
NOW, THEREFORE, the Parties agree as follows.
1. Definitions. Terms used in this Agreement shall have the following
meaning:
1.1. "Customer" means a company listed in Exhibit "B" who enters
into an Agreement to purchase the Products under terms
approved and accepted by avVaa.
1.2. "Net Sales Revenue" means monies collected by avVaa pursuant
to Customer Agreements less any discounts, refunds, credits,
costs of shipping, applicable sales taxes, value-added-taxes,
or other extraordinary fees.
1.3. "Price List" means avVaa's then-current Products price list,
which is subject to change from time to time in avVaa's sole
discretion, subject to a 30-day notice for new orders
developed by avVaa.
1.4. "Products" means avVaa's complete line of products that it
manufactures, markets and distributes under avVaa's corporate
umbrella.
2. Appointment. Subject to the terms and conditions set forth herein,
avVaa hereby appoints DJL and DJL hereby accepts appointment, as a
consultant to avVaa.
3. Term. The term of this Agreement shall commence as of the Effective
Date and continue for one (1) year period (herein "Initial Period" or
"Term") unless earlier terminated by avVaa or DJL as permitted under
this Agreement.
4. Renewal. Subject to written notice by DJL and written acceptance by
avVaa, at least thirty (30) days prior to the end of the Initial Term,
DJL may renew this Agreement for an additional one (1)-year period.
5. Termination. Upon termination or non-renewal of this Agreement, DJL
shall within ten (10) days of such termination return to avVaa all
copies of the Products, including the copies of technical materials,
brochures, marketing materials, and the like.
6. Supply of Products: avVaa will use commercially reasonable efforts to
timely supply Customers with Products.
7. Rights of DJL.
7.1. Rights. avVaa grants to DJL the right to market and sell the
Products to Customers in the territory during the Term and
pursuant to the terms and conditions of this Agreement.
7.2. Prohibitions. DJL is granted a right to market and present
Products directly to Customers, but not to authorize other
consultant contractors without the prior written approval by
avVaa in the case of each additional consultant.
7.3. Independent Contractor Status. The relationship of the party
under this Contract shall be that of an independent
contractor. This Contract does not establish or constitute an
employee or franchisee relationship to avVaa. Notwithstanding
anything to the contrary, avVaa reserves the right, in its
sole discretion, to reject any Customer or Customer Contract,
and DJL is not authorized to accept orders or make contracts
in avVaa's name, or to transact any business in the name of
avVaa's, or to assume or create any obligation or
responsibility to any third parties binding upon avVaa in any
manner whatsoever, unless prior specific written consent from
avVaa.
8. Obligations of DJL.
8.1. Sales / Marketing. DJL agrees to use commercially reasonable
efforts to market and sell the Products and agrees that its
marketing efforts will be of high quality, in good taste, and
will use its best efforts to ensure the professional image and
reputation of avVaa and the Products. DJL also represents to
conduct business in a manner that reflects favorably on the
quality image of avVaa and its Products. The sole focus of DJL
will be to implement and execute sales and marketing
objectives based upon avVaa's Business Plan. DJL will
interface with Xx. Xxxxx and the Crossfire Group to insure
their marketing and sales efforts are being executed in a
timely manner to insure implementation of avVaa's business
objectives.
8.2. Competent Personnel. DJL agrees to maintain competency in any
and all sales and marketing personnel so that each is
reasonably knowledgeable of the features and advantages of the
Products.
8.3. Compliance with Laws. DJL shall comply with all applicable
requirements of federal, state and local laws, ordinances,
administrative rules and regulations.
8.4. Identification. DJL shall identify itself as an authorized
consultant to avVaa only with respect to the avVaa Products
and shall otherwise identify itself as an independent
businessman. Neither avVaa nor DJL shall make any express or
implied agreements, guarantees or representations, or incur
any debt in the name of or on behalf of the other.
8.5. Non-Disparage. The Parties to this Agreement shall not
disparage each other or their affiliates or their products or
services, nor shall the parties to this Agreement disparage
their respective competitors or the services or products of
such competitors. This provision shall survive for three (3)
years from the date of expiration or termination of this
Agreement.
8.6. Non-Compete. Representative shall not market, sell or resell
competitive products similar to Products to Customers. This
provision shall survive for one (1) year from the date of
expiration or termination of this Agreement.
8.7. Market Intelligence. DJL shall provide avVaa with market
intelligence that it obtains in the course of its business and
visa versa.
9. Obligations of avVaa.
9.1 Marketing Materials, Support & Training. avVaa shall make
available initial and ongoing marketing materials, support and
training as mutually agreed by both avVaa and DJL.
9.2 Customer Support. avVaa shall be responsible for the
provisioning of all Customer Products shipments and technical
support.
9.3 Customer Billing and Collections. avVaa shall be responsible
for all Customer billing, collections and receivables at no
charge or expense to DJL for all shipments of Products.
10. Compensation.
10.1 Raising Working Capital for AvVaa. DJL shall earn a finders
fee of 7.5% of the gross proceeds raised for avVaa or any of
its affiliates during the term of this contract. Proceeds
shall be paid to DJL within 14 days after closing, at which
time avVaa would be in control of the proceeds.
10.2 DJL will provide the support, implementation and execution of
the avVaa initial sales plan for the first year for: 1) Stock
in the amount of 350,000 (Three Hundred Fifty Thousand) of
non-registered
"144" stock with a legend affixed to the stock certificate.
(At which time the "144" stock is eligible to have the legend
removed, avVaa will at no charge have the Opinion Letter
written and forwarded to avVaa's Transfer Agent for
processing. If a registration should occur at anytime prior to
the first year of DJL's anniversary date of issuance, avVaa
will register said shares along with any other S-8
registrations being processed at that time. 2) DJL will be
issued 250,000 (Two-Hundred Fifty Thousand) avVaa "S8" free
trading shares within 10 business days after this agreement is
signed by avVaa. Fifty percent (50%) of the proceeds from the
S8 shares will be used for travel expenses for implementation
of the avVaa sales plan and (50%) of the shares will be used
as compensation for services performed. (Travel expenses will
be split equally between avVaa and DJL up to the net proceeds
of 125000 shares of S8 stock.) All shares are to be issued at
0.001 cents per share and not at market price since this type
of compensation is for work performed.
10.3 DJL will provide the initial business plan for the avVaa
coatings line of products prior to 12-31-05.
Commissionable Sales. DJL will receive a commission of 2% on
all avVaa gross sales that are brought to the table by DJL on
a monthly basis.
10.4 New Product Introductions. DJL will receive 150,000 shares of
(144) restricted avVaa stock for each new product that is
incorporated into the AvVaa product mix and business plan
brought into the company by DJL. The "144" shares will be
issued to DJL 14 days after the first sale of the new product
through avVaa's regular course of distribution channels.
Additionally, DJL will receive a 5% commission on all gross
sales of new products that are incorporated into the avVaa
product lineup in year one that are brought to the table by
DJL.. If the contract is renewed for a five year period then
the commission structure would be: Year 1= 5%, Year two= 4%,
Year three= 3%, Year two= 2%, Year one= 1%
10.5 Sales Records and Reports. avVaa agrees to maintain a
complete, clear and accurate record for at least two (2) years
of any and all Products sales transactions to Customers during
the Term of this Agreement. Upon ten (10) days advance notice,
avVaa shall permit DJL or persons designated by DJL, bound to
the same non-disclosure provisions of this Agreement, to
inspect records pertaining to such Products transactions to
ensure compliance by avVaa with its obligations to DJL. Any
such inspection and audit shall be conducted during regular
business hours and in such a manner as not to interfere with
normal business activities of avVaa. Under no circumstances
shall such an audit be performed on a contingency basis. The
costs for such inspections will be solely born by DJL.
11. Use of avVaa Trademarks and Service Marks.
11.1. Trademarks. avVaa hereby grants DJL for the Term of this
Agreement a non-transferable, royalty-free license to use
"avVaa", in logo form as used by avVaa, and the applicable
Products trademarks (collectively, the "Trademarks") solely in
DJL marketing, advertising and promotion of the Products. DJL
shall use in accordance with the then-current use policies.
DJL agrees not to attach any additional trademarks, logos or
trade designations to the Products. DJL further agrees not to
affix any Trademarks to Products other than the genuine
Products. DJL agrees to cooperate with avVaa in facilitating
avVaa's monitoring and control of the nature and quality of
such products and to supply avVaa with specimens of use of the
Trademarks upon request.
11.2. Limitation of Trademarks License. DJL is prohibited and may
not use the avVaa name or any Trademarks as any part of their
company name unless otherwise explicitly granted permission in
writing to do so, and in no case for a period beyond the Term
of this Agreement. Whenever DJL uses or displays the
Trademarks in marketing or advertising materials, DJL shall do
so only in accordance with the restrictions set forth in
avVaa's then-current policies, which are updated from time to
time.
11.3. Ownership of Proprietary Rights and Non-Disclosure. DJL
acknowledges that the Products and Trademarks are proprietary
to avVaa and that avVaa retains exclusive ownership thereof,
and DJL will take all reasonable measures to protect avVaa's
proprietary rights therein. Except as provided herein, DJL is
not granted any rights to patents, copyrights, trade secrets,
trade names, trademarks (whether registered or unregistered),
or any other rights, franchises or licenses with respect to
the Products. In addition, either Party may be exposed to
certain information concerning the other party's proposed new
products, services, market strategies and/or financial
performance that is confidential and proprietary to the other
party ("Confidential Information"). The Parties agrees that
during and after the Term of this Agreement, the Parties will
not use or disclose to any third party any Confidential
Information without the prior written consent of the
originating party, except DJL may disclose Confidential
Information to its employees if reasonably necessary to allow
DJL to perform under this Agreement and to obtain the benefits
thereof. This paragraph shall not apply to Confidential
Information which (i) is shown to have been known, available
or developed by the receiving party independent of any
disclosure by the other party; or (ii) is or becomes available
to the public through no breach of this Agreement; or (iii) is
furnished to a third party by the original disclosing party
without similar restriction on the third party's rights; or
(iv) is lawfully obtained from a third party without
restriction and without breach of this or any other Agreement.
Neither party shall be liable for disclosure of any
Confidential Information as required by law or in response to
a valid order of a court of competent jurisdiction or
authorized government agency; provided however, that the party
who discloses Confidential Information under such
circumstances shall attempt to give notice to allow the other
party to request a protective order.
12. Warranty.
12.1. Products. avVaa only warrants the Products to Customer
pursuant to the terms and conditions of Customer orders
accepted by DJL. No warranty is extended to DJL, except as
provided below;
12.2. Proprietary Rights Indemnity. avVaa shall defend at its own
expense any claim, suit or proceeding brought against DJL or
Customers insofar as it is based on a claim that the Products
infringe upon any patent or copyright, trademark, trade
secret, or other intellectual property right. DJL agrees to:
(i) give avVaa written notice of any such claim and (ii) allow
avVaa to control, and fully cooperate with DJL in the defense
and all related settlement negotiations. avVaa shall pay all
damages, costs and expenses finally awarded to third parties
against DJL, but shall not be responsible for any settlement
made without its consent. Upon notice of an alleged
infringement or if in avVaa's opinion such a claim is likely,
avVaa shall, at its option, obtain the right to continue the
manufacture of the Products, substitute other services with
similar operating capabilities, or modify the Products so that
they are no longer infringing.
12.3. Defective Product Indemnity. avVaa agrees to indemnify and
hold harmless DJL and their successors and assigns, from any
claim, action, liability, loss, damage or suit based on
defective Products or installation. In the further event avVaa
shall fail to so defend and/or indemnify and save harmless,
then in such instance DJL and/or its shareholders shall have
full rights to defend, pay or settle said claim on their
behalf and with full rights to recourse against avVaa for all
fees, costs, expenses and payments made or agreed to be paid
to discharge said claim.
12.4. Limitations and Disclaimer. Except for the express warranties
set forth above, avVaa makes no other warranties relating to
the Products, express or implied, and expressly excludes any
warranty of non-infringement, fitness for a particular purpose
or merchantability. No person is authorized to make any other
warranty or representation concerning the performance of the
Products other than as provided by avVaa. DJL shall make no
other warranty, express or implied, on behalf of avVaa.
12.5. Mutual Indemnification. Each party will indemnify the other
party against and hold it harmless from: (i) any and all
claims of their respective employees, agents or sub
contractors or sub representatives for wages, salaries,
employee benefits, and contract service fees or payments, and
(ii) any and all claims of their respective employees for
personal injuries (including death) or property damage
suffered or incurred, other than such claims arising from or
based on the acts, gross negligence, or willful misconduct of
the other party or the employees, agents, or sub
representatives of such other party who undertake activities
in connection with this Agreement, and (iii) any and all
claims for personal injury (including death) or property
damage arising from or based on the acts, gross negligence, or
willful misconduct of such party or the employees, agents, or
sub representatives who undertake activities in connection
with this Agreement. avVaa agrees to indemnify and hold DJL
harmless from any loss, damage, injury, liability or claims,
including physical damage to person or property, arising from
any act or omission of avVaa, while: (i) engaged in the
performance of this Agreement or in connection with the
performance obligations of the services under this Agreement
or (ii) being or as a result of being on the avVaa premises,
unless the damages or injury has arisen as a direct result
from gross negligence or willful misconduct by DJL.
13. Termination.
13.1. Without Cause. avVaa or DJL may terminate this Agreement
within the Initial Period without cause or prejudice upon
thirty (30) days prior written notice.
13.2. With Cause. avVaa may terminate this Agreement following
written notice by avVaa to DJL of a material breach of this
Agreement by the other party if such breach is not cured
within thirty (30) days of such notice.
13.3. Rights upon Termination. Upon termination or non-renewal of
this Agreement, DJL shall immediately (i) discontinue any and
all use of Trademarks, including but not limited to such use
in advertising or business material of DJL; (ii) remove and
return to avVaa, or destroy at avVaa's request, any
intellectual property supplied and or created by avVaa or
Representative and all promotional materials supplied by
avVaa; (iii) cease holding itself out, in any other manner, as
an authorized consultant of avVaa Products, and notify and
arrange for all publishers and others who may identify, list
or publish DJL's name as a consultant for the Products
(including, but not limited to, publishers of web sites, web
pages, telephone directories, yellow pages and business
directories) to discontinue such listings. 13.4. In the event
of death of DJL or any event where DJL is not able to function
his assigned objectives for avVaa in a normal capacity, all
sales commissions will cease within six months from the time
DJL is no longer able to perform his outlined functions in
this agreement. All warrants and stock (144 or S8) will remain
in the DJL estate
14. Miscellaneous.
14.1. Notices. Any notices permitted or required under this Agreement shall
be in writing, and shall be delivered as follows with notice deemed
given as indicated: (i) by personal delivery when delivered personally;
(ii) by courier upon written verification of receipt; (iii) by
facsimile when confirmed by facsimile transmission; or (iv) by
certified or registered mail, return receipt requested, ten (10) days
after deposit in the mail.
14.1.1. Any notices provided by avVaa to DJL shall also be served on;
Xxxxx X. Xxxxxx
0000 Xxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
14.1.2. Any notices provided by DJL to avVaa shall also be served on;
AvVaa World Health Care Products, Inc.
Attention: Xx. Xxxx Xxxxxx
0000 Xxxxxxxxx Xx
Xxxxxxxx, XX, Xxxxxx VOE 1WO
14.2. Assignment. This Agreement may not be assigned by DJL without
the prior written approval of avVaa. The covenants and
conditions contained in this Agreement shall apply to and bind
the successors and permitted assigns of the Parties hereto.
14.3. Waiver. The waiver by either party of a breach of any
provisions contained herein shall be in writing and shall in
no way be construed as a waiver of any succeeding breach of
such provision or the waiver of the provision itself.
14.4. Severability. In the event that any provision of this
Agreement shall be unenforceable or invalid under any
applicable law or be so held by applicable court decision,
such unenforceability or invalidity shall not render this
Agreement unenforceable or invalid as a whole, and, in such
event, such provision shall be changed and interpreted so as
to best accomplish the objectives of such provision within the
limits of applicable law or applicable court decisions.
14.5. Injunctive Relief. It is expressly agreed that a violation of
Paragraphs 7. ("Rights of avVaa"), 11. ("Use of avVaa
Trademarks and Service Marks"), or 11.3. ("Ownership of
Proprietary Rights and Non-Disclosure") of this Agreement will
cause irreparable harm to avVaa and that a remedy at law would
be inadequate. Therefore, in addition to any and all remedies
available at law, avVaa will be entitled to an injunction or
other equitable remedies in all legal proceedings in the event
of any threatened or actual violation of any or all of the
provisions hereof.
14.6. Controlling Law and Dispute Resolution. This Agreement shall
be governed by and construed in accordance with the laws of
the State of Florida, without reference to any conflict of
laws provision(s). The parties agree that all actions and
proceedings arising in connection with this agreement shall be
determined exclusively by binding mediation/arbitration in
accordance with the then-current commercial dispute procedures
of the American Arbitration Association, and will be conducted
exclusively in the country of Canada, British Columbia. The
arbitration shall be "self-executing", such that no order to
compel by any court is necessary to enforce compliance with
the terms of this paragraph against a party who declines to
voluntary participate in the AAA procedure. Should one of the
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Parties fail to respond to a request to arbitrate or otherwise
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decline to participate in the procedure, the AAA
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administration shall appoint a neutral third arbitrator who is
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empowered by this paragraph to entertain evidence from the
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participating party and enter a binding award accordingly. The
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Parties expressly submit to the jurisdiction of British
Columbia, AAA arbitrator, and voluntarily waive any right to
assertion of the principle of "inconvenient forum." The
Parties waive any rights that either party might have to
consequential, multiple or punitive damages. The Parties each
expressly forever waive any right to trial by jury, or to any
appeal of the arbitrator's decision. The prevailing party in
any such dispute shall be entitled to attorney's fees and
costs at the discretion of the arbitrator, and the award of
the arbitrator may be rendered as a judgment by a British
Columbia federal court.
14.7. Address Change. A party's addition to or change in the address
from the address first set forth above shall require written
notice to the other party.
14.8. Counterparts. This Agreement may be signed in two counterparts
that together shall form a single agreement as if both parties
had executed the same document. This Agreement may be
circulated and delivered by telefax transmission, and telefax
signatures shall be binding as original signatures.
14.9. Subcontractors and Affiliates. Any and all subcontractors
and/or affiliates of DJL shall be bound by the same terms and
conditions of this Agreement.
14.10. Warranty. Each party warrants that it has full power and
authority to enter into and perform this Agreement, and the
person signing this Agreement on its behalf has been duly
authorized and empowered to enter into this agreement. Each
party further acknowledges that it has read this Agreement,
understands it and agrees to be bound by it.
14.11. Entire Agreement. This Agreement supersedes and replaces any
oral or written agreement previously entered into between the
Parties. AvVaa's failure to enforce any provision of this
Agreement shall not constitute a waiver of any provision of
this Agreement. The provisions of this Agreement shall be
deemed severable. In the event that any provision of this
Agreement is determined to be unenforceable or invalid, such
provision shall nonetheless be enforced to the fullest extent
permitted by applicable law, and such determination shall not
affect the validity and enforceability of any other remaining
provisions of this Agreement. This Agreement, together with
all schedules attached hereto and all writings incorporated
herein by reference, constitutes the entire agreement between
the parties with respect to the subject matter of this
Agreement. Since both parties have engaged in the drafting of
this Agreement, no presumption of construction against any
party shall apply.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date set
forth below.
Accepted By: Accepted By:
AvVaa World Healthcare Products, Inc Xxxxx X. Xxxxxx
/s/ Xxxx Xxxxxx /s/ Xxxxx X. Xxxxxx
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Authorized Signature Authorized Signature
Xxxx Xxxxxx Xxxxx X. Xxxxxx
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Print Name Print Name
President An Individual
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Title Title
January 18, 2005 January 18, 2005
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Date Date
EXHIBIT A
PRODUCT
Product Descriptions
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AvVaa World Healthcare Product's Inc. have developed a range of
over-the-counter, steroid-free, all natural skin care products which provide
relief from the symptoms and reduce the recurrences of specific skin disorders,
including eczema, psoriasis, dermatitis, acne and other types of skin
conditions.
1) Neuroskin Spray
2) 2) Dermac Spray
3) ItchX
4) Nail Fit
5) Razor-Rash
6) Any future products developed by avVaa while this contract is in force
EXHIBIT B
CUSTOMERS
Company Name Address Line of Business/Application
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