MasterRepresentative&ConsultingAgreement
ThisMasterRepresentativeandConsultingAgreement("Agreement")isentered intoasofthe23rdDayofMay,2013(hereinafter "Agreement Date")betweenKMH Associates,Inc. a New YorkCorporation, withits principal place of business atBOX 1195, Smithtown,NY 11787-0959 (the "Master Rep") and Nyxio TechnologiesCorp, an Oregon Company with itsprincipal place of business at 2156 Northeast Broadway, Portland, OR 97232 (the"Vendor").
General
WhereastheMasterRepisengagedinthebusinessofprovidingoperational, promotional,marketing,andsellingservices for various businesses; andsales and marketing management consulting services.
WhereastheVendordesirestoretaintheMasterReptoobtainand manage individualsandbusinessentitiestomanage,promote,marketandselltheVendor's products/services in the UnitedStates.
Inconsiderationfor themutualpromises,covenants,andAgreementsmade below,theparties,intending tobelegallybound,agreeasfollows:
Agreement
1. RighttoSolicit.TheVendorgrantstotheMasterReptherighttosolicit individualsand otherbusinessentities (hereinafterreferred toas the"SubRep") to provide the Vendor with certain logistical support,promotional, selling services forthe Vendor's products/services, and managesaid entities in the United States. IndividualSub Territoriesare defined as the designated geography serviced by theSub Rep. Territory is definedas the Continental UnitedStates.
2. Trademarksand TradeNames.Vendorreservesallrightstothetradenames andtrademarksandtoanyother commercialsymbolsthatit may adopt oruse from time to-time.
3. IndependentContractor.TheMasterRepisnotanemployeeoftheVendorfor anypurposewhatsoever,butis an independentcontractor. The Vendor isinterested only in the results obtainedby theMaster Rep, who shall have sole control of the manner and means of performing under this Agreement provided said performance is conducted in an ethicaland legalmanner.The Vendor shall not have theright to requirethe Master Rep to do anything thatwould jeopardize the relationship of independent contractor between the Vendor and the MasterRep.All expensesand disbursementsincurredby the Master Rep in connectionwiththis Agreement shall be born wholly and completely by the MasterRep. TheVendor may from time to time chooseto reimbursetheMaster Rep for specific expenses when appropriate and Agreed bybothparties. The Master Repdoes not have, norshalltheMasterRep present itselfas havinganyright,power or authorityto createany contract or obligation, either expressor implied, on behalf of, or binding upon the Vendor,unless theMasterRep receives priorwritten consent from the Vendor. The Master Rep shall have the right to appoint, and shall be solely responsible for the Master Rep'sown solicitation force, employees,agentsand representatives, whoshall be atthe MasterRep'sownrisk,expense and supervision and who shall not have any claimagainst theVendorfor compensation or reimbursement except asspecified in Paragraph 4; Commission.The Master Rep mayrepresent otherproducts/services that do not compete directly orindirectly with products/services covered bythisAgreementandmay exercise theMaster Rep's own discretion inobtaining promotional,sellingand marketing services, hiring personnel and otherwisecomplying withthe termsof this Agreement.
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4. Commission
4.1TheVendorshallpaytheMasterRepacomm1ss1onpursuanttoExhibitA.Vendorfurtheragreesthat in the event the Vendorfails to pay commissions within 60 days of the date(s) due, pursuant to the terms in Exhibit A, the Sub Repcompanies will have theright to pursue .their portionof the commission(s) due as though they had a direct fiduciary relationship with the vendor underthe appropriate and applicable terms herein.
4.2 ConsultingFees-(ifany)arepayableasspecifiedinExhibitAParagraph3.
5. BestEfforts.The MasterRepshalluseitsbesteffortstoprovidecertain logisticalsupport,promotional,sellingandmarketingservicesforthe Vendor andto solicit Subs to perform such services for the Vendor.
6. TermandTermination.
6.1ThetermofthisAgreementshallbetwoyearsfromthedatefirstwrittenabove, unlessterminatedbymutualagreement as specified below.
6.2 ThisAgreement,afterninemonthsfromtheaboveAgreementDate,maybe terminatedinanySub-Territory*,foranyreason, on sixtydayswritten notice, and such termination will become effectivethirty days thereafter. (Total of90 days.) Termination of a Sub Repinany Sub Territory shallnotseversaid Sub-Territory* from this Agreement. Afternotless thantwelvemonths,Vendormayterminate this Agreement in total.Said termination of this Agreementin total shall become effective ninetydays from receipt of written notice as stipulatedherein. This Agreement will renew automatically two yearsfrom the effectivedate of this Agreement first written above unlessterminated by either party as stipulated herein.
6.3 IntheeventofterminationunderParagraph6.1orParagraph6.2above,the MasterRepshallbeentitledtocommissionsfororders shippedby the Vendorwithina period sixty days from the effective termination date forall ordersacceptedup to the termination effective date.
6.4 Intheeventthatpriortotheeffectiveterminationorexpirationdate,theVendor hasaccepteda purchaseorder,contractorotherdeviceusedbyacustomertopurchase, guaranteeapurchaseorsecure termsandconditionsfor futurepurchasesor release(s)of product, forshipmentto thecustomer or designee,said purchase order,contractor other device, and the conditionsandamounts,etc. containedherein pertainingtocommissions and the payment of said commissions to Master Rep, shall survive the termination or expiration of this Master Representative & Consulting Agreement.
Notes:*DefinedaseithertheSubRep'sGeographicorspecifiedaccounts
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6.5AllcommissiondueunderPara6.1,Para6.2,Para6.3andPara6.4willbepaid pursuant to Exhibit A.
7. ProprietaryInformation.Thecustomers,business,products/services, technology,businessconnections,customerlists,procedures,operations,techniquesand otheraspectsofthebusinessoftheMasterRepresentativeandVendorare establishedat great expense and protected as confidentialinformation and tradesecrets and providethe other with a substantial competitiveadvantage of selling its products/services. The partiesshall haveaccess to, andbeentrusted with,tradesecrets, confidential information and proprietary information, and the parties would suffer great loss and injury if the either party would disclose this information or use it to compete orbypass the other. Consequently,the partiesagree thatduring its relationship withtheother, andfrom then on,for a period of three(3) years, it will not,directlyor indirectly,either individuallyor asanemployee,agent, partner, shareholder, orin anyother capacity, use ordisclose,or causetobe used or disclosed, anytrade secret, confidential information or proprietary information acquired by either party during its relationship with the other.
8. Indemnification.MasterRepshallindemnifyandholdVendorharmlessforany claims,actions,losses,damagesand awardsduetoProductmisrepresentations byMaster Rep that exceed the Product warranties thatVendorhas stated in writing orwhichwere not expressly authorized by Vendor.
VendorshallindemnifyandholdMasterRepharmlessfromand againstanyandallthird partyclaims,damagesandcostsincurredby MasterRep arisingexclusively upon the claim of the infringement of any U.S.patents,copyrightsortrademarks inthe manufacture or the marketingof Vendor's products/services; provided that Master Rep (i) has not modified Vendor's product in any way, (ii) gives Vendor full and complete authority, information andassistanceto settleanddefend suchaction, and(iii) promptly notifies Vendor oftheclaim of infringement or legalproceeding, Vendor may, at its expense and option, eitherprocure the right to continue using any part of Vendor's product, replace same with non-infringing Vendor product, or modify suchVendor's product such that it is non- infringing.The MasterRep shall notify Vendorin writing, within ten(10)days of receipt of any complaints or claims brought or threatened against MasterRepwithrespectto Vendor's proprietaryrights.
9. GeneralProvisions
9.1Assignment.Exceptassetforthinthissection,neitherthisAgreementnorany rightsunderthisAgreement,in whole or inpart, shall be assignable or otherwise transferableby eitherpartywithout theexpress written consent ofthe otherparty. Any attempt byeither party toassign any ofits rights or delegateanyof its duties under this Agreement withoutthe priorwritten consent of the other party shallbenull andvoidand maybe causefor terminationofthisAgreement,inaccordance withandsubject tothe terms andconditionsset forth inSection6 above. Subjecttotheabove, thisAgreement shallbe bindingupon and take effectfor thebenefitof the successorsand assigns of the parties to this Agreement.
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9.2 Waiver,Amendment,Modification. Nowaiver, amendment ormodification, includingthosebycustom,usageoftrade,orcourseofdealing,ofanyprovisionof this Agreementwill be effective unlessin writingand signed by the partyagainst whomsuch waiver, amendmentor modification is soughttobe enforced.No waiver byany partyof any default in performance by the other party under this Agreementorofanybreachor series of breaches by the other party of anyof the termsorconditionsof thisAgreement shall constitutea waiverof anysubsequent defaultin performanceunder this Agreement or anysubsequent breachofany terms orconditionsofthat Agreement.Performanceof any obligation requiredof a partyunder this Agreementmay be waivedonly bya written waiversigned by a duly authorizedofficer of the other party,that waiver shall be effective only with respect to the specific obligation describedin that waiver.
9.3 ForceMajeure.Neitherpartywillbedeemedindefaultof thisAgreementtothe extentthatperformanceofitsobligations,orattemptstocure any breach,are delayedor prevented by reasonof circumstance beyond itsreasonable control, including without limitationfire, natural disaster, earthquake, accident orother acts of God ("Force Majeure"), provided that the party seeking to delay its performancegives the other writtennoticeof any suchForceMajeure within 15 daysafterthediscoveryof theForce Majeure, andfurther provided thatsuch partyusesits goodfaith efforts to cure the Force Majeure. If thereis a Force Majeure, thetimeforperformance or cure willbeextended for a periodequal to the duration of the Force Majeure. This Articleshall not be applicable to any paymentobligations of either party.
9.4 CumulativeRights.AnyspecificrightorremedyprovidedinthisAgreement shallnotbeexclusivebutshallbecumulativeuponallotherrights andremedies setforth in this section and allowed underapplicable law.
9.5 GoverningLaw.ThisAgreementshallbegovernedbythelawsoftheStateof Oregon,UnitedStatesofAmerica.
9.6 EntireAgreement.ThepartiesacknowledgethatthisAgreementexpressestheir entireunderstandingandAgreement,andthattherehave beennowarranties, representations, covenants orunderstandings made by eitherparty tothe other except suchas are expresslysetforth in this section.The parties furtheracknowledge that this Agreement supersedes, terminatesand otherwiserendersnulland voidanyandall prior Agreements or contracts, whether written or oral, enteredinto between Vendorand Master Rep with respect to the matters expressly set forth in this Agreement.
9.7 Counterparts.ThisAgreementmaybeexecutedinmultiplecounterparts,any oneofwhichwillbedeemedanoriginal, but all ofwhich shall constituteone and the same instrument.
9.8 AttorneyFees.Ifeitherpartyisrequiredtoretaintheservicesofanyattorney,orotherresource,toenforceorotherwise litigate ordefendanymatterorclaimarising out ofor in connection with this Agreement, then theprevailing party shall be entitled to recover from the other party, in addition to any other relief awardedor granted, its reasonable costs and expenses, including attorneys'fees, incurredin the proceeding.
9.9 Severability.IfanyprovisionofthisAgreementisfoundinvalidor unenforceableunderjudicialdecreeordecision,theremaindershallremain valid and enforceable according to its terms. Without limiting the previous, it is expressly understood and agreed thateachand every provision of thisAgreement thatprovides for a limitation ofliability, disclaimerofwarranties, or exclusionof damages is intended by the parties tobe severableand independentofany other provisionand to be enforcedas such. Further, it is expressly understood and agreed that if any remedy underthis Agreement is determined to have failed ofits essentialpurpose; all other limitations of liability andexclusion ofdamages set forth inthis section shall remain in fullforce and effect.
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9.10 Miscellaneous.Thepartiesacknowledgeandagreethattheextentofdamageto theMasterRepintheeventof breach by the Vendorofanyof the covenantscontainedin this Agreement willbe difficult orimpossible toascertain and that there will be no adequate remedyof law available to theMasterRepin the eventof such breach. Consequently, the Vendor agrees that, in the event of such breach, theMaster Rep, in addition to receiving damages for thebreach, shallbeentitledtoenforce any andallof the covenants containedin this Agreement by injunctiveor other equitable relief.
9.11 Notices.Allnotices,demandsorconsentsrequiredorpermittedunderthisAgreementshallbein writing andshall be delivered by commercial courierormailed certified returnreceiptrequestedtothe respective parties at the addresses setforthaboveor at such otheraddress assuch party shall specifyto theotherparty in writing. Any notice required or permitted to be given by the provisions of thisAgreement shall be conclusivelydeemed to have beenreceivedon the day it is delivered to thatparty by U.S. Mail with Acknowledgment ofReceipt or by any commercial courierproviding equivalent acknowledgmentof receipt.
9.12 CaptionsandHeadings.CaptionsandsectionheadingsusedinthisAgreement areforconvenienceonlyandare nota part ofthis Agreementandshall notbe used in construing it.
Wehavecarefullyreviewedthiscontractandagreetoandacceptitstermsand conditions.We areexecutingthisAgreementasoftheday and year first written above.
| KMH Associates, Inc. | Nyxio Technologies Corporation |
| /s/ Howard Blumberg | /s/ Giorgio Johnson |
| By: Howard Blumberg | By: Giorgio Johnson |
| President | President and CEO |
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Exhibit
Master Representative Compensation
1. TheMasterRep'scompensationforsalesmadeunderthisAgreementshallbeas follows:TheMasterRepshallbeentitled toa total commission for eachindividual sale of the products/services arranged throughthe MasterRep or hisSub Reps of not less than 5%, unless agreedin writing otherwisefor the particular sale and priortosaid sale, of the netinvoice of each sale.
1.1 ForordersacceptedbyVendor,theMasterRepshallbepaidcommissionprorata fortheportionofeachpartialortotalshipment(s)madeto said customeron said sale equal to theapplicable commissionpercentage provided above,times thenetinvoice price of the Products/servicesbeing shipped, which said commissionpayment(s) shall be due and payable to the MasterRep by the 20th day of the nextcalendarmonth following receiptbyVendor ofcustomer's payment for any such partialor totalshipment(s) made to the customer,up to the maximumtotalcommission foreach individual sale provided above, less any deductions for returns or allowances.
1.2 Theterm"netinvoiceprice"shallmeanthetotalinvoicepriceatwhichthesaleis invoicedtothecustomer,excludingallshippingandmailing costs,taxes, duties, insurance, any allowances or discounts grantedto the customer and all charges for installation or instruction., including but not limited to Market DevelopmentFunds, co-op or SPA allowances.
2. There shallbedeductedfromanysumsduetheMasterRep:
2.1 AnamountequaltocommissionspreviouslypaidorcreditedtotheMasterRepon saleswhereallorsubstantially alloftheconsideration relating to thathas sincebeen returnedtothe customer orin the event only a portion ofsuch consideration has since been returned tothe customer orallowances have been credited tothecustomer bythe Vendor,the pro rataamount ofpreviously paidor credited commissions on such returns or allowances.
2.2 AprorataamountofcommissionspreviouslypaidorcreditedtotheMasterRepon saleswherelessthanthetotalpurchasepriceofthe Products/services isultimately paid bythe customer, whether by reason ofthecustomers bankruptcy, insolvency orforany other reason whatsoever, in theVendor's judgment, rendersthe account uncollectible in whole or inpart, in which event, if any sums are later realized upon the uncollectible account, theVendorwill pay the MasterRep thepercentage of commission applicableto the amountof the actual collection.
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3.0Fees:Feesshallbecomprisedofamonthlyretaineratarateof$36,000.00per annum,payablemonthlyfor an initialperiod of 6-months, with theoptionto renewfor additional6month increments, for theduration of thisAgreement, atVendor's discretion. Vendor'soption to renew shallbe madeknown to the Master Rep no less than fifteen (15) days prior to the expiration of eachaforementioned increment. The monthly fee payment of $3,000USDshallbedue and payable in advanceon thefirst businessday of each month.In lieu of U.S. Dollars, the Vendor may pay the MasterRep unrestricted sharesofVendor's stock (currentlytradedOTCMarket)whose valueshall be takenattheend of trading OTC Markettrading day (5PM Easterntime) on thefirst business day of each calendar month. Details of stock issue to be attached to this Agreement prior to execution of this Agreement.
4.0Expenses:Vendorshall,initsdiscretion,offerexpensereimbursementfor preapprovedtravelexpensesforthepurposeofselling theVendor's products.Expense reimbursement shall be paid upon the submission of an expense report for saidpurpose, by Vendor's checkor wire transfer.
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AddendumtocurrentNyxioTechnologiesCorpAgreement ExhibitA
MasterRepresentative (KMHAssociates,Inc.)Compensation
ThischangedatedJanuary17,2014andretroactivetoJanuary1,2014,is a change to Paragraph3 to the above titledExhibitAof saidAgreement datedMay23, 2013 by andbetween Nyxio TechnologiesCorp and KMH Associates, Inc.
EffectiveJanuary1,2014-Asfollows:
3 Fees: Feesshallbecomprisedofamonthlyretaineratarateof $36,000.00perannum,payablemonthlyfor theterm (twoyears asofdatefirst writtenabove) of thisAgreement. TheVendor's decision astowhether torenewthisAgreement shall be madeknown tothe Master Rep noless than fifteen (15) days priortotheexpiration of thisAgreement. Themonthlyfee paymentof$3,000.00 USD shallbedue andpayablein advance onthefirst businessdayofeachmonth.In lieu of U. S. DollarstheVendor may pay theMasterRep anumber ofunrestrictedsharesoftheVendor's stock(Currentlytradedin the OTC market) valuedat$3000.00USD as oftheper share valuetakenatthe end of trading of the OTCMarket onthefirstbusinessday ofeachcalendar month.
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Addendum 1
Master Representative Compensation
Effective October 1, 2014
Changed and Agreed:
Exhibit A paragraph 3.0 Fees: Fees shall be comprised of a monthly retainer at a rate of $36,000.00 per annum, payable monthly for an initial period of 6-months, with the option to renew for additional 6 month increments, for the duration of this Agreement, at Vendor’s discretion. Vendor’s option to renew shall be made known to the Master Rep no less than fifteen (15) days prior to the expiration of each aforementioned increment. The monthly fee payment of $3,000 USD shall be due and payable in advance on the first business day of each month. In lieu of U.S. Dollars, the Vendor may pay the Master Rep unrestricted shares of Vendor’s stock (currently traded OTC Market) whose value shall be taken at the end of trading OTC Market trading day (5 PM Eastern time) on the first business day of each calendar month. Details of stock issue to be attached to this Agreement prior execution of this Agreement.
Shall now read:
3.0 Fees: Fees shall be comprised of a monthly retainer at a rate of not less than $120,000.00 per annum, payable monthly. The monthly fee payment of not less than $10,000 USD shall be due and payable in advance on the first business day of each month. In lieu of U.S. Dollars, the Vendor may pay, in part or total, the Master Rep unrestricted shares of Vendor’s stock (currently traded QTC Market) whose value shall be taken at the end of trading OTC Market trading day (4 PM Eastern time) on the first business day of each calendar month.
| KMHAssociates,Inc. | NyxioTechnologiesCorporation |
| /s/ Howard Blumberg | /s/ Giorgio Johnson |
| By: Howard Blumberg | By: Giorgio Johnson |
| President | President and CEO |
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