Kelly Space and Technology, Inc. Distributor Agreement
This agreement made this 22 day of August 2007, Medina Marine, Inc. a wholly
owned subsidiary of Medina International Holdings, Inc. (a Colorado Corporation)
located at 255 S. Leland Norton Way, Suite 6, San Bernardino, CA 92408
("company," "MMI") and Kelly Space and Technology Inc., a California corporation
located at 294 S. Leland Norton Way., Suite 3, San Bernardino, CA 92408 ("KST")
(each a "Party", and, together "Parties").
I. Duties, Scope of Agreement and Relationship of the parties.
1. MMI warrants that it is authorized by Medina International Holdings,
Inc. to enter into this agreement per Exhibit A.
2. MMI appoints KST as:
(a) Exclusive Distributor of the company's boat/watercraft
products ("Products") for the United States Department of Defense.
(b) Non-Exclusive Distributor for all other customers.
However, Non-Exclusive Distributor status will convert to Exclusive
Distributor status in accordance with the terms and conditions of this
agreement, for a particular customer, upon receipt of a sales order
from the same.
3. KST agrees to consult with the Company during the term of this
agreement. All parties understand that KST has many other business
interest and will devote as much time as in its discretion as necessary
to perform its duties under this agreement. In addition, company
understands that KST's efforts on behalf of its other interests are the
sole and separate property of KST.
4. The services rendered by KST to the company pursuant to this
agreement shall be as an independent contractor, and this agreement
does not make KST the employee or legal representative of the company
for any purpose whatsoever, including without limitation, participation
in any benefits or privileges given or extended by the Company to its
employees. No right or authority is granted to KST to assume or to
create any obligation or responsibility, express or implied, on behalf
of the Company, except as may be set forth herein. The company shall
not withhold, for the KST, any federal or state taxes, if applicable,
from the amounts to be paid to KST here under and KST agrees that he
will pay all taxes, if applicable, due on such amounts.
II. Sales
1. Medina Marine, Inc. will sell its standard Products (12', 15', and 21'
watercrafts) and non-standard custom-made Products to KST in accordance
with this agreement.
2. KST will inform the company of any sale orders in writing. KST will inform
the company of any requests or other issues concerning the sales of the
company products in writing. KST will inform the company of any progress of
the sales, payment, or any other type of transactions relating to the sale
of the company products from initiation to delivery in writing.
3. Medina Marine, Inc. will sell its products to KST in accordance with the
Pricing Schedule in Exhibit B.
Following to be inserted in Exhibit B--Exhibit B to contain
Product prices for standard Products and Address ways to price
non-standard Products. Exhibit B: The Parties shall come to
agreement on any escalation, if any, provided that a request for
escalation is supported by documentation evidencing the
requirement for a cost increase. Notwithstanding this, Product
prices shall not escalate beyond 10% per annum.
4. The manufacturing of the boat will not commence until the initial payment
of the boat is disbursed to the company. (See Section III "Payment")
5. Firm intent of a sale order refers to the following:
a. A written document from KST to the company for an order of any of the
company's products.
6. Company will refer international military customers to KST on a
case-by-case basis and comply with all necessary export licensing
regulations regarding sale and export.
III. Payment
1. KST will disburse the payment for the boat(s) according to the following
schedule:
a. 30% of the agreed (between KST and company) sale price will be paid to
the company at the time of the boat order.
b. 30% of the agreed sale price will be paid to the company at the
completion of the hull and deck.
c. 20% of the agreed sale price will be paid to the company at the
completion of the assembly of the boat.
d. The remaining 20% of the agreed sale price will be paid to the company
after final customer acceptance.
2. The Parties shall in good faith agree to adjust the payment schedule above
to meet customer requirements on a case by case basis if required.
3. The payment will be transacted by wire transfer only.
4. The manufacturing of the boat will not commence until the initial payment
of 20% of the agreed sale price is disbursed to the company.
5. KST and Company shall agree to a production and delivery schedule prior to
any specific sales orders and any liquidated damages demanded by customer
for delays shall be borne by Company.
IV. Terms
1. This agreement will be effective for a period of five (5) years with an
option for KST to renew agreement for an additional five (5) year period
subject to the following:
a. KST purchases one (1) boat from Company within 2 years of the
effective date of this Agreement and minimum of one (1) boat each year
thereafter.
V. Communication with the customer
1. KST will establish relations with the customer and will deal directly with
them with respect to sales.
2. Medina Marine, Inc. will have no direct interference with the customer with
respect to sales and marketing to the Department of Defense and other
government entities of the United States of America.
3. KST will be responsible to arrange all necessary plans for the customer to
visit the company's facility at KST's or the
customer's expense.
VI. Marketing
1. Expenditures
a. Expenditures for advertisement by KST will be borne at the KST's
expense.
b. Expenditures for KST's website will be borne by KST.
c. KST's travel expenditures, such as airline tickets, accommodation,
gasoline, and meals will be borne by KST.
d. KST's expenditures to attend boat shows will be borne by KST.
2. The company will provide assistance to KST with regards to marketing tools
(such as brochures, animations, etc.) in order to assist KST with sales.
3. The company will link its website to KST's website and vice versa if agreed
in writing by both parties.
4. The company shall make available a demonstration boat for an end customer.
Any reasonable costs, agreed to by the Parties, associated with the
demonstration such as transportation and operating expenses shall be borne
by KST.
VII. Termination
1. This agreement may be terminated if:
a. Either party fails to fulfill any material obligation under this
agreement and shall not have cured the breach within 20 days after
having received written notice thereof.
2. Termination or expiration of this agreement shall not extinguish any rights
of compensation that shall accrue prior to the termination.
VII. Confidential Information
1. Confidential Information shall be treated in accordance with the
Non-Disclosure Agreement signed between the parties dated 16 August 2007
per Exhibit C.
IX Miscellaneous
1. Expense on Mailing of letters is negligible and will not be considered for
reimbursement.
2. Modification: This Agreement may be modified or amended only in writing
signed by both the Company and KST.
3. Governing law: The laws of California will govern the validity,
construction, and performance of this Agreement. Any legal proceeding
related to this Agreement will be brought in an appropriate California
court, and both the Company and KST hereby consent to the exclusive
jurisdiction of that court for this purpose.
4. Construction: Wherever possible, each provision of this Agreement will be
interpreted so that it is valid under the applicable law. If any provision
of this Agreement is to any extent invalid under the applicable law; that
provision will still be effective to the extent it remains valid. The
remainder of this Agreement also will continue to be valid, and the entire
Agreement will continue to be valid in other jurisdictions.
5. Waivers: No failure or delay by either the company or KST in exercising any
right or remedy under this Agreement will waive any provision of the
Agreement, nor will any single or partial exercise by either the company or
KST of any right or remedy under this Agreement preclude either of them
from otherwise or further exercising these rights or remedies, or any other
rights or remedies granted by any law or any related document.
6. Captions: The headings in this Agreement are for convenience only and do
not affect this Agreement's interpretation.
7. Entire Agreement: This Agreement supersedes all previous and
contemporaneous oral negotiations, commitments, writings, and
understandings between the parties concerning the matters in this
Agreement.
8. Notices: All notices, requests and other communications hereunder must be
in writing and will be deemed to have been duly given if delivered
personally, by facsimile transmission, by international commercial courier
or mailed (first class postage prepaid) to the other Party at the following
addresses or facsimile numbers:
In the case of Company, send to:
Danny Medina
President
Medina Marine, Inc.
255 S. Leland Norton Way
San Bernardino, CA 92408
In the case of KST, send to:
Jason Lee
Director of Operations
Kelly Space & Technology, Inc.
294 South Leland Norton Way,
San Bernardino, CA 92408
Tel: 909.382.2010
Fax: 909.382.2012
Nothing else is implied or expressed.
- --------------------------- ------- ------------------- --------
Michael J. Gallo Danny Medina
President & CEO President
Kelly Space and Technology, Inc. Date Medina Marine, Inc. Date
(a wholly owned subsidiary of
Medina International Holdings, Inc.)
-------------------- --------
Madhava Rao Mankal
CFO
Medina Marine, Inc. Date
(a wholly owned subsidiary of
Medina International Holdings, Inc.)
EXHIBIT A
(Medina International Holdings, Inc. Board Resolution)
Corporate Resolution- For Certificates
I, Madhava Rao Mankal, do hereby certify that at a meeting of the Board of
Directors of Medina International Holdings, Inc., a corporation organized under
the State laws of Colorado held on the 21st day of August, 2007 by Circulation,
which said meeting no less than two officers or directors were present and
voting throughout, the following resolution, upon motions made, seconded and
carried, was duly adopted and is now in full force and effect:
Resolved, "That the Officers or any two officers to sign on all documents of
Medina Marine, Inc. wholly owned subsidiary of the Medina International
Holdings, Inc."
Resolved that " Medina Marine has the sole rights to exercise the Licensing
rights of Medina International Holdings, Inc. relating to 12', 15', 21 and Fire
Pump license. Also it has rights to manufacture, sell the water crafts and
assign distribution license to market the products
OFFICERS: OFFICE HELD:
Daniel Frank Medina President
Madhava Rao Mankal Chief Financial Officer
In witness whereof, I have hereunto set my hand and seal this 21st day of
August, 2007.
SEAL AUTHORIZED SIGNATURES
Secretary: Madhava Rao Mankal ____________________________
If no seal, certify that there is no seal
EXHIBIT B
I. Cost of the Standard boat/watercraft to Kelly Space & Technology, Inc., as
of August 22, 2007.
a. 12 foot Standard Rescue/Patrol Jet Boat = $50,000.00
b. 15 foot Standard Rescue/Patrol Jet Boat = $70,000.00
c. 21 foot Standard Rescue/Patrol Jet Boat = $95,000.00
II. Cost of the Standard boat/watercraft with a Fire Nozzle System installed to
Kelly Space & Technology, Inc. as of August 22, 2007.
a. 15 foot Standard Fire Rescue Jet Boat = $95,000.00
b. 21 foot Standard Fire Rescue Jet Boat = $125,000.00
2. The Parties shall come to agreement on any escalation, if any,
provided that a request for escalation is supported by documentation
evidencing the requirement for a cost increase. Notwithstanding this,
Product prices shall not escalate beyond 10% per annum.
EXHIBIT C
KELLY SPACE & TECHNOLOGY, INC.
NON-DISCLOSURE AGREEMENT
NDA No.___
This AGREEMENT, made and entered into on 16 August 2007, between Kelly Space &
Technology, Inc. (and its subsidiaries) of San Bernardino, California, and
Medina Marine Inc., a wholly owned subsidiary of Medina International Holdings,
Inc. of San Bernardino, California.
WITNESS:
WHEREAS, it is the purpose of this Agreement to enable the Parties to
perform the project or program activities hereinafter referred to;
WHEREAS, both Parties for their mutual benefit, anticipate the possible
need to disclose to and receive from the other Party, information associated
with the projects or program activities (hereinafter "Program" or "Programs"),
which the furnishing Party considers to be proprietary and which relates to
technical, programmatic or financial information originated by or otherwise
peculiarly within the knowledge of one Party, and currently protected against
unrestricted disclosure to others regarding technical, programmatic and
financial information (hereinafter "Data");
WHEREAS, the United States Government (hereinafter "Government") may
request information which is the subject hereof;
NOW THEREFORE, in consideration of the proprietary and confidential
nature of the Data being supplied by each Party to the other for the purpose
expressed hereinabove, the Parties do hereby mutually agree to maintain
confidential and not disclose to third Parties, any such Data received from the
other; except in accordance with this Agreement as set forth herein below:
1. MARKING OF INFORMATION.Any information exchanged by the Parties and entitled
to protection hereunder shall be identified as such by an appropriate stamp or
marking on each document exchanged designating that the information is
"Proprietary" and if oral disclosure of such protectable Data is made, such Data
shall be so identified at time of disclosure. Within thirty (30) days thereafter
a written notice with complete summaries of an oral disclosure desired to be
protected, appropriately stamped or marked, shall be delivered to the receiving
Party addressed as noted hereafter in this Agreement. Transmittal of documents
exchanged shall be evidenced by written notice from the disclosing to the
receiving Party.
2. PROTECTION AND USE.
2.1 The receiving Party shall hold each item of proprietary information so
received in confidence for a period of ten (10) years after the expiration of
this Agreement. During such period, the receiving Party shall use such
information only in connection with the purpose of this Agreement and shall make
such information available only to its employees having a "need to know" with
respect to said purposes. In connection therewith, the Parties shall advise each
such employee of the obligations under this Agreement. Except when authorized in
writing by the disclosing Party, the receiving Party shall not otherwise use or
disclose such information during the aforesaid period. Said proprietary
information may, with the other Party's consent be disclosed by the receiving
Party to the cognizant U.S. Government agency in connection with proposals
related to the Program; provided, however, any such disclosure shall bear the
restrictive legend as applicable of FAR 15.609, Limited Use of Data, or FAR
52.215-1(e), Restriction on Disclosure and Use of Data, in effect on the
effective date of Agreement, or a successor provision substantially the same. No
Data provided under this Agreement shall be delivered under a contract or
otherwise made subject to a contract "rights in data" clause.
2.2 The standard of care for protecting such information, imposed on the Party
receiving such information, will be that degree of care the receiving Party uses
to prevent disclosure, publication or dissemination of its own proprietary
information, providing it uses a reasonable standard of care.
2.3 Neither Party shall be liable for the inadvertent or accidental disclosure
of proprietary information if such disclosure occurs despite the exercise of the
same degree of reasonable care as such Party normally takes to preserve its own
such Data or information.
2.4 Neither Party hereto shall, without the prior written consent of the other,
use in whole or in part proprietary information disclosed by the other to
manufacture or enable manufacture by third Parties of the disclosing Party's
products, products similar thereto, or products derived therefrom. The
information disclosed and all copies thereof shall, upon the expiration or
termination of this Agreement, be returned to the respective disclosing Party or
destroyed and a written certificate of destruction provided to the disclosing
Party.
2.5 This Agreement will not preclude either Party from working with others in
any connection so long as the obligations described herein are respected.
3. EXCLUSIONS FROM PROTECTION. Information shall not be afforded the protection
of this Agreement if, on the effective date hereof, such information is; or it
is determined subsequent hereto that such information:
a. was developed by the receiving Party independently of the disclosing
Party; or
b. was publicly available other than through the fault or negligence of
the receiving Party; or
c. was released without restriction by the disclosing Party to anyone
including the United States Government; or
d. was lawfully known to or obtained by the receiving Party from a source
other than the disclosing Party, including the Government, and without
breach of this Agreement by the recipient; or
e. was disclosed with the written approval of the other Party.
4. LEGAL ACTIONS
4.1 Should the receiving Party be faced with legal action or a requirement under
U.S. Government regulations to disclose information received hereunder, the
receiving Party shall forthwith notify the disclosing Party, and upon the
request of the latter, the receiving Party shall cooperate in contesting such
disclosure. Except in connection with a failure to discharge the
responsibilities set forth in the preceding sentence, neither Party shall be
liable in any way for any disclosures made pursuant to judicial action or U.S.
Government regulations, or for inadvertent disclosure or use, if it shall have
notified the disclosing Party and shall have endeavored to prevent any further
inadvertent disclosure or use.
4.2 Recognizing the sensitive proprietary nature of the Data exchanged hereunder
and the inadequacy of legal remedies in the event of unauthorized release,
either Party may request a court of competent jurisdiction to enjoin such
unauthorized release and/or distribution of such proprietary Data.
5. NO RIGHTS GRANTED. Nothing in this Agreement shall be construed as granting
or conferring any rights on the part of either Party by license or otherwise,
expressly or implied, to any invention or discovery, or to any patent covering
such invention or discovery.
6. WARRANTY. NEITHER PARTY MAKES ANY WARRANTY, GUARANTEE, OR REPRESENTATION,
EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE PROPRIETARY INFORMATION
DISCLOSED HEREUNDER. NEITHER PARTY SHALL BE LIABLE IN DAMAGES, OF WHATEVER KIND,
AS A RESULT OF THE OTHER PARTY'S RELIANCE ON OR USE OF THE INFORMATION PROVIDED
HEREUNDER.
7. INDEPENDENT CONTRACTOR. Each Party in undertaking its responsibilities
hereunder shall be deemed an independent contractor and nothing in this
Agreement shall constitute, create, or in any way be interpreted as a joint
venture, partnership, or formal business organization of any kind.
8. TRANSMISSION AND CONTROL POINTS. The exclusive points of contact with respect
to the transmission and control of information furnished by either Party to the
other hereunder shall be as follows:
Kelly Space & Technology, Inc. Name Medina Marine, Inc.
294 S. Leland Norton Way, Suite 3 Address: 255 S. Leland Norton Way, Suite 6
San Bernardino, CA 92408 San Bernardino, CA 92408
Attn: Jason Lee Attn: Daniel F. Medina
Operations Manager Title: President
Tel: (909) 382-5663 Tel: (562) 972-5888
Fax: (909) 382-2012 Fax: (909) 522-4230
Either Party may change the above points of contact at any time by providing
written notification to the other Party.
9. EXPIRATION/TERMINATION. This Agreement shall expire five (5) years after the
effective date, except that it may be terminated earlier by thirty (30) days
prior written notification of either Party to the other, or extended by mutual
written agreement. The effective date is defined as the day, month and year of
the last signatory of this document. The provisions of paragraph 2 above shall
survive such expiration or termination. In the event the Parties enter into a
definitive contract, the rights and obligations of the Parties shall be governed
by that contract.
10. UNITED STATES GOVERNMENT REGULATIONS. The Parties and each Party will assure
that their employees will not use or disclose any Proprietary Information or
other information furnished hereunder in any manner contrary to the laws and
regulations of the United States of America, or any agency thereof, including
but not limited to, the Export Administration Regulations of the U.S. Department
of Commerce, the International Traffic in Arms Regulations of the U.S.
Department of State, the Economic Espionage Act of 1996 and the Industrial
Security Manual for Safeguarding Classified Information of the Department of
Defense.
11. APPLICABLE LAW. This Agreement shall be governed, interpreted, and construed
in all respects, including substantive and procedural aspects thereof, according
to the laws of the State of California, except for those portions of California
law applicable to conflicts of law provisions, and that body of law pertaining
to the Federal Acquisition Regulation (FAR) as interpreted by the Armed Services
Board of Contract Appeals (ASBCA) and the U.S. federal courts.
12. INTEGRATION, MODIFICATION, SEVERABILITY, NON-ASSIGNMENT. This agreement
contains the entire understanding between the Parties relative to the subject
matter thereof, and supercedes all prior and collateral communications,
understandings, and agreements. No modification to any provisions hereof shall
be binding unless in writing and signed by authorized representatives of both
Parties. If any provision of this Agreement shall be or become unenforceable,
the Parties shall endeavor to reform the Agreement appropriately, and if not,
then the provision shall be severed and the remainder of the Agreement shall
remain in full force and effect. This Agreement is not assignable or
transferable without the prior written consent of the other Party, and any such
assignment or transfer without such consent is void.
13. CORPORATE AUTHORITY. Each Party hereby represents to the other that it has
full corporate power and authority to enter into this Agreement and perform the
obligations hereunder; and this Agreement constitutes a valid and legally
binding obligation of each Party enforceable in accordance with its terms.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed and in effect on the day and year first written above.
For Kelly Space & Technology, Inc. Name
Signature: Signature:
----------------- -----------------
Name: Jason Lee Name: Daniel F. Medina
Title: Operations Manager Title: President
Date: Date: ----------------------
---------------------
Name
Signature:
Name: Madhava Rao Mankal
Title: CFO
Date:
-----------------------
- --------------------------------------------------------------------------------
Kelly Space & Technology, Inc.
294 S. Leland Norton Way
San Bernardino, CA 92408
Tel: (909) 382-2010 - Fax (909) 382-2012