1580 N W 3rd Street, Deerfield Beach, FL 33442, Tele +1 855 252 8872 Tele +1 855 2 KBT USA Fax +1 888 640 653 REFERRER AGREEMENT
AN AGREEMENT made the day and year set out in Section 1 of the First Schedule hereto BETWEEN KBT America LLC company incorporated in Florida under the Applicable Federal & State laws and having its office at 8403 NW 70th Street, Miami, FL 33166, USA (hereinafter referred to as “KBTA”) of the first part AND the party whose name and particulars are set out in Section II of the First Schedule hereto (hereinafter referred to as “the Referrer”) of the second part.
RECITALS A.
KBTA has the exclusive right to market the Product as hereinafter defined under the trade mark “KristalBond”, or such other mark or name as KBTA may from time to time introduce.
B.
The Products relates to the coating of glass surfaces to reduce, inter alia, heat and ultra violet rays and Car Headlamps & fuel Saving and require special training, techniques and equipment in its application.
1.
INTERPRETATION
1.1
“Business”
means the promotion and sale of the Product by the Trainer within the Territory and all matters related thereto for the post market;
“Commencement Date”
means the date as set out in Section IV of the First Schedule hereto;
“Confidential Information”
means any materials, documents, formulae, technology, methods, processes, trade secrets, pricing, financial information, sales and marketing strategy, customer list, data and other information not within public knowledge disclosed to or obtained by the Applicator (whether orally or in writing) pursuant to or in connection with this Agreement or through the course of dealings between the Applicator and KBTA in whatsoever form or media including without limitation, computer disk, CD-ROM, documentation or electronic form and regardless of whether or not such items aforesaid is/are expressly stated to be confidential;
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“Force Majeure”
means Acts of God, government orders or restriction, war (declared or undeclared), hostilities, blockade, embargo, revolution, riot, strike, lockout, epidemics, fire, flood and any other causes or circumstances beyond the control of the parties hereto;
“Intellectual Property”
means any patent (registered or pending registration or patentable), copyright, registered design and design rights, trademarks, service marks, trade secrets or other industrial or intellectual property right in respect of the Product, and applications for any of the foregoing;
“Product”
means the products set out in the attached Second Schedule hereto and such other product(s) as may be set out in a separate product list or such product(s) as may from time to time be included or removed in writing by KBTA with the consent of the Trainer from the Second Schedule or the product list;
“Trade Marks”
means and includes: (a) the trade mark “KristalBond” and other products listed; (b) any other logo or mark or name invented or used by KBTA on or in connection with the Product;
1.2
Unless the context otherwise requires, any reference to a statute or a statutory provision shall include such provision as from time to time modified or re-enacted or consolidated so far as such modification or re-enactment or consolidation applies or is capable of applying to any transaction entered hereunder.
1.3
Reference to Recitals, Clauses, Paragraphs, Appendices and Schedules refer to recitals, clauses, paragraphs, appendices and schedules of this Agreement.
1.4
The headings are for convenience only and shall not affect the interpretation of this Agreement.
1.5
Unless the context otherwise requires, words importing the singular only shall include the plural and vice versa and references to natural persons shall include bodies corporate.
2.
APPOINTMENT AS A REFERRER
2.1.
KBTA hereby appoints the Referrer to offer for sale the product know as KristalBond TM
3.
TERRITORY
3.1.
The Referrer shall only refer the Products for direct sales and shall not be concerned with or be involved (whether directly or indirectly) in any sale distribution marketing and promotion of the Product outside via e commerce without the prior written consent of KBTA.
3.2.
The Referrer shall promptly refer to the KBTA all enquiries concerning the Product from any party of interest and shall do all that is within its power to assist KBTA to secure the sales.
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4.
RESTRICTIONS ON THE REFERRER
4.1.
the Referrer shall be entitled to describe itself as KBTA’s authorized Referrer for the Products, but shall not hold itself out as KBTA’s agent for sales of the Product or otherwise and the Referrer shall have no right or authority to bind KBTA to any agreement or contract with any party in any way whatsoever.
4.2.
The Referrer is prohibited from representing to any party that it has the authority to act on behalf of KBTA and the Referrer acts as an independent contractor in all contracts and agreements between the Referrer and its or KBTA’s customers.
4.3.
The Referrer shall : 4.3.1.
not obtain the Product for sale or application from any person, firm or company other than KBTA or its authorised dealers;
4.3.2.
not be concerned involved and/or interested, either directly or indirectly, in the manufacture distribution sales promotion or otherwise of any products or materials : 4.3.2.1.
having the effect of coating, shielding or reducing heat or light transmission on glass surfaces achieved by way of coating; or
4.4.
The standard conditions of sale of KBTA from time to time (or if there is a copy of the current form of which has been supplied to the Referrer prior to the date of this Agreement and annexed hereto as Appendix II) shall apply to all sales of the Product to the Referrer or any end users pursuant to this Agreement, except to the extent that if any provisions in the standard conditions of sale is inconsistent with any of the provisions of this Agreement, the provisions of this Agreement shall prevail.
4.5.
KBTA shall be entitled to amend vary or substitute all or any of the standard conditions of sale any time and from time to time and notice of such amendment variation or substitution may be given to the Referrer by letter, circular to Trainer, notice or such other mode as KBTA deems fit.
4.6.
Such amendment variation or substitution of the standard conditions referred to in Appendix II hereof : 4.6.1.
shall continue to apply from its effective date until the same is itself varied;
4.6.2.
shall not affect any orders placed prior to such amendment variation or substitution aforesaid.
4.7.
The Referrer shall maintain the Product prices provided by KBTA, except in the event that KBTA advise otherwise in writing
5.
TECHNICAL SUPPORT
5.1.
KBTA shall from time to time provide the Referrer with such equipment and demo kits and up to date information concerning the Product as KBTA may consider appropriate or as the Refererer may reasonably require in order to assist the Referrer with the sales of the Product, and KBTA shall endeavour to answer as soon as practicable any technical enquiries concerning the Product which are made by the Referrer or its customers.
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6.
COMMENCEMENT
6.1.
This agreement shall commence upon the initial referral made by the Referrer as stipulated in Section IV of the First schedule.
7.
PRICING/PAYMENT/DELIVERY FOR THE SERVICE
7.1.
The Referrer shall adopt a Price List as Appendix III (hereinafter referred to as “the Price List”) for all materials & application to be supplied and the price may be varied from time to time by KBTA.
7.2.
In the event of any changes to the Price List, KBTA shall give to the Referer not less than thirty (30) days’ notice in writing of any such changes, and the prices as so altered shall apply to all Product delivered on and after the implementation date of the increase, including outstanding orders subject always that the price of Product paid by the Referrer or his customer to KBTA in full prior to the notice of the change of price shall be maintained and be unaffected by such increase notwithstanding that delivery of the Product have not been made .
7.3.
The recommended retail price of the Product which the Referrer may offer its customers shall be determined by the KBTA Price List.
7.4.
KBTA shall oblige to meet the date of the delivery agreed upon the confirmation of the Purchase Order from the Referrer or his custoemer except the Force Majeure stipulated in Clause 19.
8.
MARKETING/SALES/APPLICATION OF THE PRODUCT
8.1.
The Referrer shall use its best endeavours to promote the sales of the Product to their customers and to satisfy market demand thereof.
8.2.
The Referrer shall maintain any Product he holds in a good and merchantable condition and shall take all steps to ensure that the quality of the Product is not compromised and would not deteriorate and the identification markings (such as batch number and date, production number and date) of the Product are not defaced or removed.
8.3.
The Referrer shall: 8.3.1.
make clear, in all dealings with customers and prospective customers, that it is acting as Referrer of the Product and not as agent of KBTA;
8.3.2.
comply with all legal requirements from time to time in force relating to the storage and sale of the Product;
8.3.3.
use in relation to the Product only such advertising, promotional and selling materials as are approved in writing by KBT
8.3.4. 8.3.5. 8.3.6.
The Referrer shall and shall ensure that only Certified Staff : apply and/or install the Product strictly in accordance with the specifications techniques methods prescribed for the Product;
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8.3.7.
shall not vary the installation methods or techniques or vary or dilute or concentrate the materials or ingredients of the Product rendering the application to be inconsistent with the prescribed specifications.
9.
INTELLECTUAL PROPERTY
9.1.
KBTA hereby authorizes the Referrer to use the Trade Marks in the Territory for the sole purpose in relation to the sales and promotion of the Product.
9.2.
The Referer shall ensure that each reference to and use of any of the Trade Marks by the Referrer in the manner approved by KBTA and accompanied by an acknowledgement, in a form approved by KBTA, that the same is a trade mark (or registered trade mark) of KBTA.
9.3.
The Referer shall not on any account whatsoever : 9.3.1.
make any modification to the Product;
9.3.2.
make any modification to the packaging without prior consent of KBTA;
9.3.3.
alter, remove or tamper with any Trade Marks, numbers, or other means of identification used on or in relation to the Product;
9.3.4.
use any of the Trade Marks in anyway which might prejudice its distinctiveness or validity or the goodwill of KBTA therein or might render the Trade Mark to be expunged from the register of trade mark at the Trade Mark Office;
9.3.5.
use in relation to the Product any marks logo names other than the Trade Marks, unless otherwise a written consent is obtained from KBTA;
9.3.6.
use any trademarks or trade names resembling the Trade Marks or other mark logo or trade names of KBTA as to be likely to cause confusion or deception.
9.4.
The Referrer shall have no rights in respect of the Trade Mark or any logo mark or name used by KBTA in relation to the Product and the goodwill associated therewith, and the Trainer hereby acknowledges that it shall not acquire any rights in respect thereof and that all such rights and goodwill are and shall at all times remain vested in KBTA.
9.5.
The Referrer shall not do or suffer to be done any act which would or might invalidate any Intellectual Property Rights of KBTA.
9.6.
The Referrer shall promptly and fully notify KBTA of any actual, threatened or suspected infringement in the Territory of any Intellectual Property Rights of KBTA which comes to the Referrer’s notice, and of any claim by any third party so coming to its notice that the importation of the Product into the Territory, or their sale therein, infringes any rights of any person, and the Trainer shall to all such things as may be reasonable required to assist KBTA in taking or resisting any proceedings in relation to any such infringement or claim.
10.
CONFIDENTIALITY AND NON DISCLOSURE
10.1.
The Trainer agrees and declares that during the course of his appointment as KBTA’s Referrer he will obtain Confidential Information and other non-public and confidential information relating to the Product and/or KBTA’s business.
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10.2.
The Confidential Information is to be considered confidential and proprietary to KBTA and the Referrer shall hold the same in confidence, and shall not divulge, disclose or distribute the Confidential Information to any party nor shall the Trainer use the Confidential Information for his personal benefit or for the benefit of any other party at any time whether before or after the termination of his appointment as Trainer of KBTA.
10.3.
The Referrer shall not divulge the Confidential Information to other staff of the Trainer unless there is a specific need to know and there is a specific need to know only if without the Confidential Information being supplied to the staff concerned the work concerned cannot be carried out.
10.4.
The Referrer shall not and is hereby expressly prohibited from making any copies or reproducing the Confidential Information in any manner and in any form or media whatsoever.
10.5.
Upon the request of KBTA, the Referrer shall immediately return all Confidential Information received in written or tangible form, including copies, or reproductions or other media containing such Confidential Information and results of any test carried out, summaries and evaluation of any such information (if any).
10.6.
The Trainer acknowledges and agrees that any breach or threatened breach of the terms of this Agreement regarding the treatment of Confidential Information may result in irrevocable damage to KBTA and its related companies or KBTA’s principal and the Referrer hereby agrees that in the event of any breach of this Agreement by the Referrer or its employees agents or representatives, the Referrer shall be liable to KBTA for damages and in addition KBTA shall be entitled to all injunctive and ancillary relief and other remedies available to it in law or in equity.
10.7.
The Confidential Information received or obtained by the Referrer shall remain the confidential and proprietary property of KBTA at all times.
10.8.
For the avoidance of doubt Confidential Information herein defined shall not include any information which is already in, or subsequently comes into, public domain other than through a violation of this Agreement.
10.9.
The provisions set out in this Clause 16 shall survive the termination of this Agreement or the termination or cessation of the Applicator’s appointment by any cause or reason whatsoever.
11.
COVENANTS BY THE REFERRER
11.1.
The Referrer covenants and undertakes to KBTA that the Applicator shall: 11.1.1.
at all times to work diligently to protect and promote the interests of KBTA and to act loyally and faithfully towards KBTA;
11.1.2.
to act in accordance with the guidelines directives or instructions of KBTA and in the absence of such guidelines directives or instructions to act in such manner as the Referer ought reasonably to have considered to be most beneficial to KBTA;
11.1.3.
to comply with all regulations laws and bye-laws in the conduct of the Business;
11.1.4.
to store the Product in a proper manner in accordance with the directions of KBTA and to keep and handle its stock in a manner which will ensure the
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Product reach a customer in perfect condition taking into account the period as notified by KBTA during which the Product will remain stable; 11.1.5.
to forthwith inform KBTA and provide KBTA with details of any dispute between the Referrer and its or KBTA’s customers or complaints or claims (threatened or otherwise) relating to the Product or application and not to institute proceedings in respect of such dispute or complaint or to enter into any compromise or settlement in respect thereof without the prior written consent of KBTA;
11.1.6.
to keep a list of actual and potential customers for the Product and to provide a copy of such list as a reference to KBTA for the KristalBond business development worldwide;
11.1.7.
to indemnity and keep indemnified KBTA from and against any and all loss damage or liability (whether criminal or civil) suffered and legal fees and costs incurred by KBTA resulting from a breach of this Agreement by the Referer including any act neglect or default of the Referrer’s agents employees licensees or customers in respect of any matter arising from the supply of the Product or conduct of the Business;
11.1.8.
to enter into contracts with customers for the Product only upon the standard terms and conditions prescribed by KBTA from time to time and not to take orders from customers unless they have assented to such terms;
11.1.9.
not to describe itself as agent or representative of KBTA;
11.1.10.
not to assign this Agreement in any way without the written consent of KBTA first had and obtained;
11.1.11.
not to allow the application of the product to be handled by any of its personnel other than Certified Staff;
11.1.12.
not tamper alter or modify the Product or any materials supplied therewith;
11.1.13.
not to make any representations to customers or to give any warranties other than those contained in any standard terms and conditions lay down by KBTA from time to time.
12.
FORCE MAJEURE
12.1.
If either party is affected by Force Majeure it shall forthwith notify the other party of the nature and extend thereof.
12.2.
Neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any its obligations hereunder to the extent that such delay or non-performance is due to any Force Majeure of which it has notified the other party and the time for performance of that obligation shall be extended accordingly.
12.3.
If the Force Majeure in question prevails for a continuous period in excess of one (1) month, the parties shall enter into bona fide discussions with a view to alleviating its effects, or to agreeing upon such alternative arrangements as may be fair and reasonable in the circumstances of the case.
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13.
DURATION AND TERMINATION
13.1.
This Agreement shall come into force on the Commencement Date and unless earlier determined continues until the Expiry Date.
13.2.
Either party shall be entitled to terminate this Agreement by thirty (30) days’ written notice to the other
14.
CONSEQUENCES OF TERMINATION
14.1.
Upon the termination of this Agreement for any reason whatsoever the following consequences shall ensue :14.1.1.
all Products and materials supplied by KBTA to the Referrer whether pursuant to any order or not shall be returned to KBTA within 14 days of expiry or termination of this Agreement at Trainer’s own cost and expenses;
14.1.2.
the Referrer shall at its own cost and expense and at the direction of KBTA forthwith :14.1.2.1.
return to KBTA all samples and any advertising, promotional or sales material relating to the Product;
14.1.2.2.
remove from the Premises (interior as well as exterior) all renovation signboards posters and other display that reflects the Business and/or the corporate image of the Business and/or KBTA;
14.1.2.3.
settle all outstanding unpaid invoices rendered to or by KBTA and in respect of the Products & Service ordered prior to termination but for which an invoice has not been submitted the same shall be payable immediately upon submission of the invoice by or to KBTA to or by the Referer.
14.1.2.4.
cease to apply, promote, market, sell or advertise the Product or to make any use of the intellectual Property and shall sign such confirmation of cessation of the use of the Intellectual Property as may be required by KBTA;
14.1.2.5.
the Referrer shall have no claim whatsoever against KBTA in respect of compensation for loss of distribution rights, loss of goodwill or any similar loss; and
14.1.2.6.
subject as otherwise provided herein and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under this Agreement.
15.
PERFORMANCE AND ASSIGNMENT
15.1.
KBTA shall be entitled to perform any of the obligations undertaken by it and to exercise any of the rights granted to it under this Agreement through any other company which at the relevant time is its holding company or subsidiary or the subsidiary of any such holding company or its related company as if it were a party to this Agreement.
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15.1.1.
15.2.
KBTA may at any time assign its rights interest benefits and liabilities under this Agreement and the Referer hereby consents and agrees to be bound by such assignment.
This Agreement is personal to the Referrer and the Referrer may not :15.2.1.
assign sell or transfer under any guise whatsoever its rights under this Agreement to any party without the prior written consent of KBTA first had and obtained which consent may be withheld at the absolute discretion of KBTA;
16.
NO PARTNERSHIP
16.1.
Nothing in this Agreement shall create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between the parties.
17.
ENTIRE AGREEMENT
17.1.
This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous agreements and understandings between the parties with respect thereto, and may not be modified accept by an instrument in writing signed by the duly authorized representatives of the parties hereto.
17.2.
Each party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation warranty or other provision except as expressly provided herein, and all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.
18.
SEVERABILITY
18.1.
If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or part, this Agreement shall continue to be valid and enforceable as to the remaining provisions thereof.
19.
NOTICES AND SERVICE
19.1.
Any notice or other information required or authorized by this Agreement to be given by either party to the other may be given by hand/despatch or sent (by pre-paid registered post, telex, cable, facsimile transmission, e mail or comparable means of communication) to the other party at the address set out herein or its last known address or its registered office or its principal place of business.
19.2.
Any notice or other information given by post pursuant shall be deemed to have been given on the day after the envelope containing the same was so posted and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted shall be sufficient evidence that such notice or information has been duly given.
19.3.
Any notice or other information sent by telex, cable, e mail facsimile transmission or comparable means of communication shall be deemed to have been duly sent on the date of transmission, provided that a confirming copy thereof is sent by pre-paid registered post to the other party at the address referred to in Clause 25.1 within 24 hours after transmission.
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20.
GOVERNING LAW AND JURISDICTION
20.1.
This Agreement shall be governed by and construed in all respects in accordance with the laws of Florida and or USA and the parties submit to the jurisdiction of the civil courts of Florida without prejudice to KBTA’s rights to commence legal proceedings against the Exclusive dealer in the Territory.
21.
WAIVER
21.1.
No failure or delay on the part of the parties hereto in exercising nor any omission to exercise any right power or privilege or remedy accruing to the parties hereto upon any default on part of the other shall affect or impair any such right power privilege or remedy or be construed to be a waiver thereof or any acquiescence to such default.
22.
SUCCESSORS
22.1.
This Agreement shall be binding on the parties hereto and their successors in title, personal representatives, permitted assigns.
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IN WITNESS WHEREOF the parties have hereunto set their respective hands the day and year first above written.
SIGNED by for and on behalf of KBT America LLC in the presence of
) ) ) )
________________________________
_____________________________________
SIGNED by for and on behalf of ) in the presence of
) ) )
________________________________
_____________________________________
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THE FIRST SCHEDULE (To be read and construed as an integral part of this Agreement)
SECTION I
DATE OF THIS AGREEMENT
SECTION II
NAME AND PARTICULARS OF THE REFERRER
SECTION III
TERM OF THIS AGREEMENT AND THE REFERRER’S APPOINTMENT ( 2) years with renewable options
SECTION IV
COMMENCEMENT DATE Upon the referring of one (1) referral made within one (1) month from the date of this agreement
SECTION V
EXPIRY DATE ( ) years from the date of commencement
SECTION VI
MINIMUM FIRST SIX MONTHS ORDER Not applicable Not Applicable
SECTION VII Not Aplicable SECTION VIII
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THE SECOND SCHEDULE (To be read and construed as an integral part of this Agreement) LIST AND DESCRIPTION OF THE PRODUCT – POST MARKET
1. 2.
“KristalBond” Coating of glass surface for buildings (THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
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APPENDIX I (THE TERRITORY) USA Canada South America Central America Caribbean Only
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APPENDIX II (THE STANDARD CONDITIONS OF SALE)
1.
These standard conditions shall apply to all sale of the Product by KBTA to the Referrer and any variation made or proposed to be made by the Referrer shall be inapplicable and of no effect unless accepted in writing by KBTA.
2.
KBTA shall oblige to meet the date of the delivery agreed upon the confirmation of the Purchase Order from the Trainer except the Force Majeure stipulated in Clause 18 of this agreement.
3.
Where special specifications are required the Referrer shall supply such specifications to KBTA in reasonable time for KBTA to consider whether to accept such specifications. No condition is made or to be implied nor is any warranty given or to be implied as to the life or wear of the Product supplied or that they will be suitable for any particular purpose or for use under any specific conditions, notwithstanding that such purpose or conditions may be known or made known to KBTA.
4.
Product supplied to the Referrer which is defective or damaged will be replaced if returned to KBTA or its dealer and accepted by KBTA as inherently defective or damaged prior to delivery to the Trainer. KBTA shall bear the cost of the logistics of the returned Product.
5.
No claim for damage in transit, shortage of delivery or loss of the Product during transit will be entertained unless a separate written notice is given to the carrier/forwarder/transporter concerned and to KBTA within two (2) weeks of the receipt of the Product at the location of the Referrer or their customer The Referrer or their customer shall inspect the Product immediately upon delivery to them.
6.
Deliveries may be wholly or partially suspended in the event of any shortage of materials, delay or interruption of work in the establishment of KBTA or its suppliers or other factors or circumstances beyond the control of KBTA. After exceeding more than two (2) months of the delivery lead time, the Referrer reserves the rights to cancel the order. KBTA shall also be entitled to suspend wholly or partially or cancel any orders if the Referrer is in breach of any of the terms of this Agreement or fails to make payment of any sum owing by the Referrer to KBTA.
7.
The Referrer shall indemnify KBTA against any claim arising from defective or faulty work or poor workmanship carried out by the Referrer for its customers.
8.
While the risks in the Product shall pass to the Referrer upon delivery thereof the property and title in the Product shall remain with KBTA until the price of the Product has been paid in full and KBTA shall be entitled but is not obliged to repossess the Product at any time prior to the full settlement of the price of the Product.
9.
The price of the Product as set out in the Price List or any quotations issued by KBTA shall be subject to variation by KBTA.
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APPENDIX III (THE PRICE LIST)
Price List (Florida) Commission 5 % of Gross Invoice value excluding Taxes KBTA to the Reseller
1
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