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EXHIBIT 6.9
This AGREEMENT is made the First day of SEPTEMBER 2000 BETWEEN WALLEM
SHIPMANAGEMENT LIMITED whose registered office is at 48th Floor, Xxxxxxxx
Xxxxxx, 000, Xxxxx'x Xxxx Xxxx, Xxxxxxx, Xxxx Xxxx ("WSM")(1) and ULTRASTRIP
SYSTEMS, INC. whose principal business office is at 0000 X.X. Xxxxxxxx Xxxx,
Xxxxxx, Xxxxxxx, 00000, X.X.X. ("Ultrastrip")(2).
1.0 DESCRIPTION
1.1 Ultrastrip is the designer and manufacturer of a robotic hydro
blasting system to be used in the heavy marine industry based on its
patented M2000 Robotic System ("the M2000 Robot"). The M2000 Robotic
system is a cost-effective, safe and environmentally compliant system
for coatings removal.
1.2 Ultrastrip wish to enter into an agreement with WSM for the following
services:
(i) to jointly develop a marketing plan to cover the concept and
operation of the M2000 Robotic system and to introduce this to
shipyards all over the world; and
(ii) to devel for the global deployment and
operation tem.
2.0 BASIS OF AGREEMENT
NOW IT IS HEREBY as follows:-
2.1 Subject to the terms and conditions herein provided during the period
of this Agreement, WSM shall carry out services in respect of the
M2000 Robotic system ("Services") as agents for and on behalf of
Ultrastrip. This Agreement shall be effective from the date of signing
by both parties.
2.2 Ultrastrip hereby authorizes WSM to market the Services to potential
users, mainly shipyards worldwide, under the terms of this Agreement.
This authorisation is exclusive and non-transferable.
2.3 Ultrastrip will promote WSM through its web site and through its media
releases. Upon execution of the Agreement both parties may produce a
press release announcing the relationship created hereby. The text and
content of any such press release shall be approved by designated
parties of both Ultrastrip and WSM.
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2.4 Ultrastrip shall train the operating teams provided by WSM, for and on
behalf of Ultrastrip, as to the operation of the M2000 Robotic System
and its auxiliary equipment and provide guidance for WSM as to sales
and marketing techniques related to the Services.
2.5 WSM shall acquire as soon as possible a fundamental knowledge of the
operation of the M2000 Robotic system.
2.6 WSM shall use best endeavors to promote the Services worldwide through
the implementation of the agreed joint marketing plan and to:
a. Assist Ultrastrip in securing contracts with targeted shipyards
for coatings removal service provided by the M2000 Robotic
system.
b. Assist in the management of all phases of the contract, provide
the personnel, (number of which to be agreed between WSM and
UltraStrip) required to operate the M2000 Robotic system and to
conduct the day to day operations of the M2000 Robotic system in
the contracted shipyards.
WSM shall not be responsible for invoicing and collection of
monies in respect of work done and area blasted. WSM shall agree
the blasted area with the yard on completion of the work and pass
this to Ultrastrip who will be solely responsible for invoicing
and collection of all monies relating to the work.
c. The parties shall regularly inform each other about the general
market developments relating to the Services, furnish each other
with appropriate information for support and planning purposes,
exchange such other information and conduct such other activities
as the parties agree will carry out the intent of this Agreement.
d. WSM shall draw up with Ultrastrip a joint marketing plan within
three (3) months from the date of signing of this Agreement. This
will involve advertisement and travel which may be extensive
initially. Any and all out of pocket expenses for any agreed /
approved (by Ultrastrip) marketing costs shall be paid by
Ultrastrip. Executive time shall be for WSM's own account and no
charge will be passed to Ultrastrip.
e. WSM shall establish a management team initially in Deerfield
Beach, Florida, U.S.A. and the cost of this office shall be at no
extra cost to Ultrastrip. Ultrastrip shall however reimburse WSM
for postage, communications expenses, travelling expenses and
other out of pocket
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expenses properly incurred by WSM in pursuance of the management
service.
3.0 MANAGEMENT FEE
3.1 Ultrastrip shall pay to WSM for its services as managers under this
Agreement a monthly management fee of five thousand US Dollars
(US$5,000). This fee will be payable by Ultrastrip to WSM for each
shipyard location irrespective of the number of M2000 Robotic systems
operating within that yard. In addition to the monthly management fee
Ultrastrip will pay to WSM an agreed commission of 2% of the contract
value agreed between Ultrastrip, and any given shipyard where the
M2000 Robotic system is deployed. This commission shall be payable
annually by Ultrastrip to WSM and shall continue until the Shipyard
contract period has ended or until this Agreement has been terminated
under the provisions herein.
3.2 WSM shall not receive any management fee until such units are deployed
in the shipyards, however payment of the management fee shall commence
as soon as deployment of the M2000 Robotic system has been made to the
shipyard and operating teams have been assigned irrespective of
whether the M2000 Robotic systems are actually being operated or not.
3.3 The management fee will be payable monthly and will be subject to
annual review on the anniversary date of this Agreement.
3.4 In the event of the appointment of WSM being terminated by Ultrastrip
or WSM in accordance with the provisions 9 and 10, other than by
reason of default by WSM, the management fee payable to WSM according
to the provisions of sub clause 3.1 shall continue to be paid for a
further period of one (1) calendar month from the termination date.
4.0 BUDGET AND MANAGEMENT OF FUNDS
4.1 WSM shall present to Ultrastrip a budget for operation of each M2000
Robot System annually to reflect the next twelve (12) months'
operating costs and in a format acceptable to Ultrastrip. A separate
budget shall be submitted to Ultrastrip for each newly deployed M2000
Robot System and the budget shall reflect the particular area of
operation or location of the shipyard. The budget shall account for
all expenditures related to the operation and maintenance of the M2000
Robotic System and a list of such items are listed under annex 'A'.
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4.2 WSM shall present to Ultrastrip an annual budget for marketing of the
M2000 Robotic System to reflect the strategy agreed to by Ultrastrip
and WSM in the joint marketing plan as agreed under the provisions of
this Agreement.
4.3 Ultrastrip shall indicate to WSM its acceptance and approval of the
annual budget within one (1) month of presentation and in the absence
of any such indication WSM shall be entitled to assume that the
proposed budget has been accepted by Ultrastrip.
4.4 Following agreement on the budget WSM shall prepare and present to
Ultrastrip its estimate of the working capital requirement of each
M2000 Robotic system and WSM shall each month update this estimate.
Based thereon, WSM shall each month request Ultrastrip for the funds
required to operate the M2000 Robotic systems for the ensuing month.
Such funds shall be received by WSM within five (5) running days after
receipt by Ultrastrip of WSM's written request and shall be held to
the credit of Ultrastrip in a separate bank account.
4.5 WSM shall produce a comparison between budgeted and actual expenditure
of the M2000 Robotic systems in such a form as required by Ultrastrip
on a monthly basis or at such times as mutually agreed.
4.6 Notwithstanding anything contained herein to the contrary, WSM shall
in no circumstances be required to use or commit its own funds to
finance the provision of the Services provided.
5.0 INSURANCES
Ultrastrip shall procure insurances, whether by instructing WSM or
otherwise, to ensure that throughout the period of this agreement:
5.1 The M2000 Robotic System is insured for full market value against all
risks, including all liabilities arising out of the management,
operation, or any defect, of the M2000 Robotic System.
5.2 WSM are indemnified for any liabilities to the operating crew, as well
as any liabilities caused by the operating crew to third parties.
5.3 Ultrastrip will be responsible for timely payment of the premiums, as
well as any policy deductibles or shortfall in recovery under the
insurances.
5.4 Where appropriate, WSM are to be named as Co-assureds under the
insurance policies.
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6.0 RIGHT TO SUB-CONTRACT
6.1 WSM shall not have the right to sub-contract any and all of their
obligations hereunder without prior written consent of Ultrastrip,
which shall not be unreasonably withheld. In the event of such a
sub-contract WSM shall remain fully liable for the due performance of
its obligations under this Agreement.
7.0 RESPONSIBILITIES
7.1 Neither Ultrastrip nor WSM shall be under any liability for any
failure to perform any of its obligations hereunder by reason of any
cause whatsoever of any nature or kind beyond its reasonable control.
7.2 (i) WSM shall be under no liability whatsoever to Ultrastrip for any
loss, damage, delay or expense of whatsoever nature, whether
direct or indirect, including but not limited to loss of profit,
arising out of or in connection with whatsoever in the course of
performance of the Services being provided UNLESS the same is
proved to have resulted solely from the negligence, gross
negligence or willful default of WSM or its employees, agents or
sub-contractors employed by WSM in connection with the Services
provided, in which case (save where loss, damage, delay or
expense has resulted from WSM's personal act or omission
committed with the intent to cause same or recklessly and with
knowledge that such loss, damage, delay or expense would probably
result), WSM's liability for each incident or series of incidents
giving rise to a claim or claims shall never exceed six (6) times
the monthly management fee per shipyard location payable
hereunder.
(ii) Notwithstanding anything that may appear to the contrary in this
Agreement, WSM shall not be liable for any actions or omissions
of the operating teams even if such actions or omissions are
negligent, grossly negligent or willful, unless such actions or
omissions are shown to have resulted from a failure by WSM to
discharge its obligations under the terms of this Agreement, in
which case WSM's liability shall be limited in accordance with
the terms of clause 7.2(i).
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7.3 Except to the extent and solely for the amount therein set out that
WSM would be liable under clause 7.2 (i) of this Agreement, Ultrastrip
hereby undertakes to keep WSM and its employees, agents and
sub-contractors indemnified and to hold them harmless against all
actions, proceedings, claims, demands or liabilities whatsoever or
howsoever arising which may be brought against them or incurred or
suffered by them arising out of or in connection with the performance
of the Agreement and against and in full in respect of all costs,
losses, damages and expenses including legal costs and expenses on a
full indemnity basis, which WSM may suffer to incur either directly
or indirectly in the course of the performance of this Agreement.
8.0 AUDITING
8.1 WSM shall at all times maintain and keep true and correct accounts
and shall make the same available for inspection and auditing by
Ultrastrip at such times as may be mutually agreed. On the
termination for whatever reasons of this Agreement, WSM shall release
to Ultrastrip, if so requested, the originals where possible, or
otherwise certified copies of all such accounts and all documents
specifically relating to the management services provided by WSM for
the operation of the M2000 Robotic system.
9.0 DURATION
9.1 This Agreement shall come into effect on the day and year stated at
the top of page 1 and shall continue until otherwise terminated by
either party giving the other notice in writing, in which event the
Agreement shall terminate upon the expiration of a period of one (1)
month from the date upon which notice was given.
10.0 TERMINATION
10.1 (i) Ultrastrip's Default -- WSM shall be entitled to terminate this
Agreement with immediate effect by notice in writing if any
moneys payable by Ultrastrip under this Agreement shall not have
been received in WSM's nominated account within ten (10) running
days of receipt by Ultrastrip of WSM's written request or if the
M2000 Robotic systems are repossessed by the mortgagees.
(ii) If Ultrastrip fails to meet its obligations under the terms of
this Agreement for any reasons within its control, WSM may give
notice
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of default to Ultrastrip, requiring Ultrastrip to remedy it as
soon as is practically possible. In the event that Ultrastrip
fails to remedy it within a reasonable time to the satisfaction of
WSM then WSM shall be entitled to terminate the Agreement with
immediate effect by notice in writing.
10.2 WSM's Default -- If WSM fails to meet its obligations under the terms
of this Agreement for any reason within the control of WSM,
Ultrastrip may give notice to WSM of the default requiring WSM to
remedy it as soon as practically possible. In the event that WSM
fails to remedy it within a reasonable time to the satisfaction of
Ultrastrip, then Ultrastrip shall be entitled to terminate the
Agreement with immediate effect by notice in writing.
10.3 Upon termination of this Agreement:-
(i) WSM shall within ten (10) business days after termination return
to Ultrastrip (or dispose of as mutually agreed) all advertising
materials and other properties furnished to it by Ultrastrip
pursuant to this Agreement.
(ii) both parties shall cease acting in a manner that would suggest
any continuing relationship between the parties regarding the
M2000 Robotic system and also all advertising contemplated under
this Agreement shall cease.
10.4 Termination of this Agreement shall be without prejudice to all rights
accrued and due between the parties prior to the date of termination.
11.0 LAW AND ARBITRATION
11.1 This Agreement shall be governed by and construed in accordance with
English law and any dispute arising out of or in connection with this
Agreement shall be referred to arbitration in London in accordance
with the Arbitration Act 1996 or any statuary modification or
re-enactment thereof save to the extent necessary to give effect to
the provisions of this clause.
The arbitration shall be conducted in accordance with the London Maritime
Arbitrators Association (LMMA) Terms current at the time when the
arbitration proceedings are commenced.
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The reference shall be to three (3) arbitrators. A party wishing to refer a
dispute to arbitration shall appoint its arbitrator and send notice of such
appointment in writing to the other party requiring the other party to
appoint its own arbitrator within fourteen (14) calendar days of that
notice and stating that it will appoint its arbitrator as sole arbitrator
unless the other party appoints its arbitrator and gives notice that it has
done so within the fourteen (14) days specified. If the other party does
not appoint its own arbitrator and give notice that it has done so within
the fourteen (14) days specified the party referring a dispute to
arbitration may without the requirement of any further notice appoint its
arbitrator as sole arbitrator and shall advise the other party accordingly.
The award of a sole arbitrator shall be binding on both parties as if he
had been appointed by agreement.
Nothing herein shall prevent the parties agreeing in writing to vary these
provisions to provide for the appointment of a sole arbitrator.
In cases where neither the claim nor any counter claim exceeds the sum of
fifty thousand US dollars (US$50,000) or such sum as the parties may agree,
the arbitration shall be conducted in accordance with the LMAA Small Claims
Procedure current at the time when the arbitration proceedings are
commenced.
12.0 NOTICES
12.1 Any notice to be given by either party to the other party shall be in
writing and may be sent by fax, telex, registered or recorded mail or
by personal service.
12.2 The contact details of the parties for service of such communication
are:
ULTRASTRIP WALLEM SHIPMANAGEMENT LTD
0000 X.X. Xxxxxxxx Xxxx, 00xx Xxxxx, Xxxxxxxx Centre,
Stuart, 000 Xxxxx'x Xxxx Xxxx,
Xxxxxxx, 00000, Xxxxxxx,
XXX. Hong Kong (SAR).
Tel. : 000-000-0000 Tel. : 000 0000 0000
Fax. : 000-000-0000 Fax. : 000 0000 0000
Email : xxxxxxxx@xxxxxxxxxx.xxx Email : xxxxx@xxxxxx.xxx
Telex Telex : 74147 NEGO HX
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IN WITNESS whereof this Agreement has been executed by the parties hereto the
day and year first above written.
SIGNED BY: X.X. XXXXXXXX
For and on behalf of )
WALLEM SHIPMANAGEMENT LIMITED ) [SEAL]
in the presence of:- X.X. XXXXX )
)
/s/ X.X. XXXXX )/s/ X.X. XXXXXXXX
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Managing Director
SIGNED BY: XXXXXX XxXXXXX
For and on behalf of )
ULTRASTRIP SYSTEMS, INC. )
in the presence of:- XXXXXX XXXX )
)
/s/ XXXXXX XXXX )/s/ XXXXXX XxXXXXX
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President
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