EXHIBIT 10.1
INDEPENDENT DISTRIBUTOR AND REPRESENTATIVE AGREEMENT
This INDEPENDENT RESRESENTATIVE AGREEMENT (AGREEMENT) is made and entered into
this 1st day of June, 2007, by and between HumWare Media Corp, Inc., a Nevada
corporation, having a place of business at 00 Xxxxxx XX, Xxxxxx, Xxxxxxxx 00000,
(HUMWARE), and Xxxxx Systems Inc., a Texas Corporation, having a place of
business at having a place of business at 0 Xxxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx, XX 00000 (DISTRIBUTOR, REPRESENTATIVE or XXXXX).
RECITALS
A. Humware is in the business of developing, marketing and licensing
the Boondoggle Sports Network that provides Fantasy Sports and
Trivia entertainment products for the hospitality industry that
deliver advertising.
B. REPRESENTATIVE desires to act as an Independent Representative of
HUMWARE and to promote said products and to sell advertising for
the account of HUMWARE.
Now, therefore, in consideration of the foregoing and the mutual covenants and
conditions contained herein, the parties agree as follows:
1. Appointment. HUMWARE authorizes REPRESENTATIVE and REPRESENTATIVE agrees to
act in the capacity as HUMWARE's exclusive DISTRIBUTOR in connection with
the promotion of Boondoggle Sports Network products and the sale of
advertising, referred to herein in the territory described as:
International Worldwide Rights excluding the United States, Canada and
Mexico.
2. Consideration. Xxxxx agrees to pay Three Million One Hundred Twenty Five
Thousand Shares (3,125,000) equal to Five Hundred Thousand Dollars
($500,000) of restricted regular common stock of Evan's Systems, Inc. (the
"Common Stock Component"). The number of shares issued to Seller to fulfill
the payment of the Common Stock Component was determined by dividing
$500,000 by $.16 the bid price of Evan's Systems, Inc.
3. Distribution outside the Territory. Distributor shall limit sales
activities with respect to the Products to customers located in the
Territory, and shall refrain from marketing, licensing or selling the
Products in the United States, Canada and Mexico unless approved in writing
by HUMWARE.
4. Sales Terms. HUMWARE and XXXXX agree to negotiate each Sale, International
Joint Venture or License Agreement separately. Any revenue derived from any
Sale, Joint Venture or License Agreement shall be shared 50/50% with
HUMWARE and XXXXX until June 1, 2012. Any license agreements or Joint
Venture agreements will be assigned or revert back to HumWare on June 1,
2012.
HUMWARE agrees to assign its United Kingdom Joint Venture Agreement when
completed to XXXXX until June 1, 2012 at which time the U.K. Joint Venture
Agreement will assigned or revert back to HumWare. Any revenue derived from
the Joint Venture Agreement until June 1, 2012 shall be shared 50/50% with
HUMWARE and XXXXX.
Appointment of Subdistributors and Joint Ventures. XXXXX may appoint
subdistributors to act on the XXXXX behalf or enter into Joint Venture
Agreements; provided, however that any compensation to such subdistributors
or Joint Ventures shall be solely XXXXX responsibility. Any agreement with
such agent or subdistributor with respect to BSN shall be coterminous with
this Agreement.
Minimum Revenue Requirement. In the event Xxxxx fails to meet the minimum
revenue requirements set forth below, then, at Humware's election and not
obligation; i. Any license agreements or Joint Venture agreements will be
assigned or revert back to HUMWARE and HUMWARE shall be free to appoint
other distributors for its Products in the Territory; ii. XXXXX shall not
have any exclusive sale, marketing or distribution rights to the Products;
iii. the license grant of Article 1 shall terminate, and; iv.
notwithstanding anything to the contrary below, the consideration paid by
distributor shall be forfitted to HUMWARE.
Minimum Revenue Guarantee. XXXXX hereby guarantees that the aggregate
amount of gross payments received by under this Agreement during each of
Year 1, Year 2, Year 3, Year 4 and Year 5 shall equal or exceed the amounts
of $250,000.00, $400,000.00, $500,000.00, $600,000.00 and $750,000.00,
respectively (the "Guaranteed Minimums"). Within thirty (30) days after the
end of each of Year 1, Year 2, Year 3, Year 4, and Year 5, Distributor
shall have the option pay Humware the difference between the applicable
Guaranteed Minimum and the actual aggregate amount of payments received by
Humware from Distributor under this Agreement during such Year 1, Year 2,
Year 3, Year 4 and Year 5, respectively, if such actual aggregate amount is
less than the applicable Guaranteed Minimum.
5. Term. This Agreement shall commence upon the Effective date and continue in
full force and effect for an initial term expiring sixty months (60) from
the Effective Date.
6. Termination. This agreement may be terminated by written agreement of both
parties or by HUMWARE in the event tten notice; or
By either party upon written notice of termination if the other party
breaches any material term or condition of this Agreement and fails to cure
that breach within thirty (30) days after receiving written notice stating
the nature of the breach and the non-breaching party's intent to terminate;
or
By Humware, effective immediately, if XXXXX should fail to minimum revenue
requirements of Section 4 above.
7. Proprietary Rights. REPRESENTATIVE agrees that right, title and interest in
and to all copyrights, trademarks, patents, patent applications,
inventions, trade secrets and all other tangible and intangible property
and work relating to the Products, and the design, manufacture, operation
or service of the Products (hereinafter collectively "Proprietary
Information") pursuant to this Agreement shall belong exclusively to
HUMWARE. REPRESENTATIVE acknowledges it is neither the REPRESENTATIVE's
intent nor HUMWARE's intent that REPRESENTATIVE gain any property rights to
any work EPRESENTATIVE performs during the course of services pursuant to
this Agreement. The use by REPRESENTATIVE of any of these property rights
is authorized only for the purposes herein set forth and upon termination
of this Agreement for any reason such authorization will cease.
8. License of HumWare Marks. Subject to the terms and conditions of this
Agreement, HUMWARE grants to REPRESENTATIVE a non-transferable, revocable
license, without right of sublicense, to use the HUMWARE Marks in the
Territory solely in connection with the sale, distribution and
advertisement of the Products. REPRESENTATIVE shall not use the HUMWARE
Marks except as expressly permitted herein.
9. Restrictions. All representations of the HUMWARE Marks shall first be
submitted to HUMWARE for approval of design, color and other details or
shall be exact copies of those provided by HUMWARE. REPRESENTATIVE shall
fully comply with all guidelines, if any, communicated by HUMWARE
concerning the use of the HUMWARE Marks. REPRESENTATIVE shall not alter or
remove any trademarks, service marks, trade names or other marks affixed to
the products by HUMWARE, nor affix the HUMWARE marks to any Product. Except
as set forth in this Article 11, nothing contained in this Agreement shall
grant or shall be deemed to grant to REPRESENTATIVE any right, title or
interest in or to the Humware Marks. All uses of the HUMWARE Marks shall
inure solely to the benefit of HUMWARE, and REPRESENTATIVE shall obtain no
rights with respect to any of the HUMWARE Marks, other than the right to
distribute Products as set forth herein. Upon any termination or expiration
of this Agreement, REPRESENTATIVE shall immediately cease to use any and
all of the HUMWARE Marks.
10. Assignment. Neither this Agreement nor any rights, authority or obligations
hereunder may be assigned by REPRESENTATIVE nor may REPRESENTATIVE delegate
the performance of any of the duties hereunder without, in either case the
written consent of HUMWARE. HUMWARE may freely transfer or assign its
rights or obligations under this Agreement without the prior written
consent of REPRESENTATIVE. Subject to the foregoing, this Agreement will be
binding upon and inure to the benefit of the parties hereto, their
successors and assigns.
11. Non-Compete. During the term of this Agreement and for a period of 2 years
following the termination of this agreement, REPRESENTATIVE shall not,
directly or indirectly, promote, sell or become an owner of any business,
which promotes or sells products and services which are competitive with
the products and services being offered by HUMWARE.
12. Confidentiality. Except to the extent necessary to perform its' obligations
under this Agreement, REPRESENTATIVE shall not disclose, disseminate,
reproduce or otherwise make available any information identified by HUMWARE
as being confidential to any third party during the term of this Agreement
or for three years after termination hereof, or such longer period as both
parties may agree in writing
13. Independent Representative. REPRESENTATIVE is an independent contractor and
shall not be deemed to be an employee of HUMWARE. REPRESENTATIVE reserves
the right to determine the method, manor and means by which the services
will be preformed. REPRESENTATIVE is not required to perform the services
during a fixed hourly or daily time and if services are preformed at
HUMWARE's premises, the REPRESENTATIVE's time spent at the premises is to
be at the discretion of the REPRESENTATIVE. REPRESENTATIVE shall perform
the services and HUMWARE shall not be required to hire, supervise or pay
any assistants or employees to help REPRESENTATIVE who performs the
services under this Agreement. REPRESENTATIVE shall not be required to
devote REPRESENTATIVE's full time to the performance of the services
required hereunder. REPRESENTATIVE acknowledges that the provision of
services to HUMWARE together with the terms of this agreement do not
conflict with any other existing non-compete agreement previously executed
by REPRESENTATIVE.
14. Governing Law. The laws of the State of Colorado shall govern this
Agreement. The parties hereby consent to such jurisdiction and venue. In
the event of a dispute related to this Agreement, the prevailing party
shall be entitled to its costs and reasonable attorney fees.
15. Entire Agreement. This is the entire Agreement between the parties: all
representations, understandings, are merged herein and the same shall not
be amended or altered in any way without the express written consent of
both parties.
16. Partial Invalidity. If any provision in this Agreement is held by a court
of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions will nevertheless continue in full force without being
impaired or invalidated in any way.
17. Notices. Any notice to be given hereunder by either party to the other may
be effected in writing by mail, registered or certified, postage prepaid
with return receipt requested. Mailed notices shall be addressed to the
parties at the addresses appearing in the introductory paragraph of this
Agreement, but each party may change the address of service by written
notice in accordance with this Paragraph.
IN WITNESS WHEREOF, the parties hereto signed this Agreement as of the date
first above written.
REPRESENTATIVE HUMWARE MEDIA CORP.
XXXXX SYSTEMS INC.
By: /s/ /s/
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Name: Xxxxx Xxxxx Xxxx Xxxxxxxxxx, CEO
Title: President and Chief Operating Officer
C/x Xxxxx Systems, Inc.
0 Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx