Exhibit 10.17
DOMESTIC NON-EXCLUSIVE DEALER
AGREEMENT
between
CIRALIGHT GLOBAL, INC.
and
ECO-SMART, INC.
DATED: December 1, 2009
TABLE OF CONTENTS
Article 1 - Appointment of Dealer............................................2
Article 2 - Products.........................................................3
Article 3 - Territory........................................................3
Article 4 - Prices and Payment Terms.........................................3
Article 5 - Security Interest................................................5
Article 6 - Duties of Dealer.................................................6
Article 7 - Duties of Corporation & Distributor..............................8
Article 8 - Minimum Purchases...............................................10
Article 9 - Exclusivity.....................................................10
Article 10 - Warranty.......................................................12
Article 11 - Term and Termination...........................................13
Article 12 - Dealer Fee.....................................................15
Article 13 - Confidentiality................................................15
Article 14 - Trademarks.....................................................16
Article 15 - Indemnification................................................17
Article 16 - Insurance......................................................18
Article 17 - Force Majeure..................................................18
Article 18 - General Provisions.............................................19
Exhibit A - Products & Trademarks
Exhibit B - Company Price List
Exhibit C - Warranty
Exhibit D - Letter of Appointment
Exhibit E - Exclusions
[CIRALIGHT GLOBAL, INC.]
DEALER AGREEMENT
(NON-EXCLUSIVE TERRITORY)
THIS AGREEMENT made as of December 1, 2009
BETWEEN:
CIRALIGHT GLOBAL, INC., a corporation incorporated under the laws of
Nevada with its principal place of business at 2603 Main Street, Suite
1150, Irvine, California 92614
(the "Corporation")
- and -
ECO-SMART, INC. , a corporation incorporated under the laws of with
its principal place of business at 4411 Bee Ridge Road #344, Sarasota,
FL 34233
(the "Dealer").
WHEREAS:
(A) The Corporation produces and sells Daylighting products bearing the
trademarks listed on Exhibit "A" hereto (the "Products");
(B) The Dealer desires to obtain the non-exclusive right to promote, sell,
service and install the Products in the Territory (as hereinafter
defined);
(C) The Dealer has assured the Corporation that it possesses the necessary
technical and commercial competence, including the marketing
organization and personnel for the promotion, sales and customer
service relating to the Products to ensure efficient performance of
its contractual obligations hereunder;
(D) The Corporation is willing to sell the Products to the Dealer either
through one of its Distributors (if a Distributor has been given the
exclusive rights for the Territory, as hereinafter defined) or
otherwise directly for marketing and sale to end users in the
Territory under the terms and conditions of this Agreement;
Ciralight Global, Inc.
Non-Exclusive Dealer Agreement
NOW THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 -APPOINTMENT OF DEALER
1.1 APPOINTMENT. Subject to the terms and conditions of this Agreement,
the Corporation grants to Dealer the non-exclusive right as a Dealer
to sell the Products in the Territory. The Dealer hereby accepts such
non-exclusive appointment and agrees to use its best efforts to
develop and promote and facilitate the sale of the Products in the
Territory during the Term, in accordance with the terms and conditions
of this Agreement, including the requirement that Products be
purchased from the Distributor (if one has been appointed) and sold in
accordance with Corporation's suggested retail price, including volume
discount policies established by the Corporation. This agreement with
Dealer shall include Dealer's own sales agents, and satelite Dealer
offices or Franchise offices operating under the Dealer's brand or
trade name.
1.2 LICENSE. Subject to the provisions of Article 14 hereof, the
Corporation hereby grants to Dealer the non-exclusive right and
license to use the trademarks set forth on Exhibit A hereto in the
Territory, only for so long as this Agreement is in force, as it may
be amended from time to time (the "Trademarks") for the sole purpose
of promoting and selling the Products in the Territory, and for no
other purpose.
1.3 DISCONTINUATIONS; NEW PRODUCTS. Nothing in this Article or elsewhere
in this Agreement shall preclude the Corporation from discontinuing
the sale of any Product which the Corporation reasonably concludes is
no longer profitable or otherwise feasible for the Corporation to
sell, provided the Corporation gives the Dealer at least ninety (90)
prior written notice of such discontinuation. If the Corporation shall
desire the Dealer to carry and sell additional skylight products and
associated accessories, the Corporation shall so advise the Dealer in
writing, and the Dealer shall have thirty (30) from the date of such
notice to determine whether it wishes to have such new skylight
product and associated accessories, added to Exhibit "A" as a Product.
If the Dealer so declines, the Corporation may sell the new product
itself or through a Distributor or another Dealer or commission agent
in the Territory.
1.4 LIMITATIONS. The Dealer shall buy and sell the Products in its own
name and for its own account. The Dealer is an independent contractor,
and not an employee, agent, joint venturer or partner of the
Corporation. The Dealer and employees of the Dealer shall identify
themselves as such, and shall make clear the limitations of their
authority to any potential or actual customers of the Products. The
Dealer may not, in any manner, accept any obligation, incur any
liability, promise any performance or pledge any credit on behalf of,
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or for the account of, the Corporation except those expressly
permitted under this Agreement (if any). Each party shall pay any and
all expenses and charges relating to their performance of contractual
obligations hereunder.
Article 2 - PRODUCTS
2.1 PRODUCTS. The Products covered by this Agreement shall include
Ciralight active and passive Daylighting products manufactured by or
at the direction of the Corporation, as more specifically set forth on
Exhibit "A" attached hereto, as it may be amended from time to time.
Article 3 - TERRITORY
3.1 TERRITORY. Subject to the provisions of Article 9 herein, Dealer is
appointed to be a non-exclusive Dealer for the United States (the
"Territory"). Dealer acknowledges that there may be one or more other
dealers appointed in the Territory depending on its geographical size
and/or population density.
3.2 In the event Corporation has not appointed a Distributor that acts as
the Exclusive Distributor for the Territory in which the product is to
be installed, then and for any period during the term or any extension
of this agreement that there is not a so designated Distributor, until
such time as a Distributor is appointed for the Territory in which the
product is to be installed, the reference to the Distributor contained
herein shall mean the Corporation. Corporation shall notify Dealer in
writing of such appointment if and when made and thereafter the Dealer
shall look exclusively to the Distributor covering the territory in
which the product is to be installed as the source of Products unless
otherwise expressly provided in writing by the Corporation. Dealer
shall purchase products and work directly with the Distributors in
accordance with the provisions of this agreement. Corporation shall
have the right to change or terminate appointed Distributors and
revert to being the supplier of Products for the Dealer in any
Territory and shall notify Dealer accordingly in such event.
Article 4 - PRICES AND PAYMENT TERMS
4.1 The selling price to the Dealer for the Products will be the
Distributor's list price for Dealers in effect at the time of the
Dealer's order. The Dealer shall submit purchase orders for the
Products to the Distributor in writing, which purchase orders shall
set forth, at a minimum: identification of the Products ordered,
quantity and requested delivery dates. Unless stated otherwise,
prices, shipments and risk of loss are Ex Works the Distributor's
facilities. Title and risk of loss pass to Dealer in accordance with
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the definition of Ex Works in Incoterms 2000. The current list prices
to be charged to Dealer for Products are set forth in Exhibit "B"
attached hereto.
4.2 Any increase in prices shall be effected by giving Dealer at least
ninety (90) days prior written notice. Any increase in prices shall
not affect any orders placed by Dealer prior to the expiration of said
period of ninety (90) days provided that if Dealer fails to make
timely payment for such existing orders after receiving notice of the
price increase, the cost thereof shall adjust to the increased price.
Prices shall not increase more than once during each period of Six (6)
months commencing initially on 1 January 2010.
4.3 Unless otherwise agreed in writing, all payments due to Distributor
hereunder (including interest) for purchases made by Dealer or
Dealer's customers shall be made in US Dollars. Payment pertaining to
any and all orders placed by Dealer according to this Agreement,
unless otherwise agreed in writing will be executed by Dealer through
wire transfer to Distributor's bank account, the details of which will
be communicated by Distributor to Dealer from time to time, in two
installments as follows:
a) Dealer will pay 50% of the purchase price of any order no later
than ten (10) days prior to the shipment of any order.
b) Distributor will pay 50% of the purchase price of any order no
later than twenty-one (21 days after the date of when the
Corporation has shipped the product.
4.4 In the event of any delay in payment of any amounts due to the
Distributor hereunder, the Distributor shall have the right to suspend
deliveries and may, at its option, terminate the order, as well as any
and all other orders and contracts with the Dealer. In the event that
the Distributor does not receive any payment when due, the Dealer
shall pay to the Distributor as a late charge and not as a penalty,
interest on the unpaid balance from the due date until payment is
actually received by the Distributor, at the varying prime (sometimes
called base) announced by the Distributor's banker. The Distributor's
right to such interest shall be in addition to and not in lieu of all
other rights and remedies arising by reason of such non-payment. Any
payment received by the Distributor may be applied by the Distributor
first to any outstanding interest due and then to any outstanding
balance owed by the Dealer to the Distributor, as the Distributor in
its sole discretion shall determine. The Dealer shall make all
payments in accordance with the terms of this Agreement
notwithstanding any claim for any alleged fault, defect or
irregularity in the Products, in the event of any delay in payment,
the Distributor may, at its option, terminate the order and hold the
Dealer liable for damages.
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4.3 In the event Dealer recruits additional Dealers, Dealer will receive a
2.00% override or at such other rate as may mutually be agreed between
Corporation and Dealer on the sales of recruited dealers for a period
of four years. Said Dealers must be approved by Corporation.
4.4 In the event that Dealer introduces the Corporation to an end user as
a finder for a transaction, as where such end user is located in the
Exclusive Territory of another Dealer or Sales Agent for a Distributor
who actually perform the Sales responsibilities, i.e. presenting,
demonstrating and selling the product to the customer, providing
technical support, placing and processing the quote, issuing the
purchase order and sales documents, providing customer service and
follow through after the installation etc., then the Dealer making the
introduction shall in such instances receive a finders fee equal to
20% of the commission resulting from such transactions, or at such
other amount as the referring Dealer and the servicing Dealer or Sales
Agent involved mutually agree between themselves regarding how to
share the resulting fees. In the event of disputes which the parties
are unable to resolve among themselves, the Corporation shall be
advised and the parties agree that the Corporation shall serve as the
final arbiter thereof.
4.5 Commissions paid to the Dealer on billings on which the customer
defaults in payment will be charged back to the Dealer when the
customer has been in default ninety (90) days or more. If the customer
pays the amount at some future date these commissions will be repaid
to the Dealer.
Article 5 - SECURITY INTEREST
5.1 SECURITY INTEREST. The Distributor shall retain title to the Products
and shall have a security interest in the Products sold to the Dealer
and all accounts receivable arising from the sale of such Products,
including their respective proceeds (for purposes hereof, the
"Collateral") until paid in full. The Dealer, upon the Distributor's
request, shall give, execute, file and/or record any notice, financing
statement, continuation statement, instrument or document which the
Distributor shall consider necessary to create, preserve, continue,
effect or validate the security interest in the Collateral granted
hereunder or to enable the Distributor to exercise or enforce its
rights hereunder. The Dealer hereby authorizes the Distributor to file
any financing statements, continuation statements or other documents
in any jurisdiction at any time it deems necessary to protect and
maintain the Distributor's interest in the Collateral, with or without
the Dealer's signature, and the Dealer hereby specifically authorizes
the Distributor as the Dealer's attorney-in-fact to execute and file
such statements on the Dealer's behalf. In the event the Dealer
intends to utilize other warehouse facilities, change its business
address or in any other way to transfer the Products, or any records
relating to such Products, including accounts receivable, to any
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location other than the address set forth above, the Dealer shall
notify the Distributor in writing at least thirty (30) days prior to
such change or transfer.
Article 6 - DUTIES OF DEALER
6.1 The Dealer, at its own cost and expense, shall use all reasonable
commercial efforts to develop and exploit the maximum sales for the
entire line of the Products in the Territory. This covenant to use all
reasonable commercial efforts shall include without limitation the
following obligations:
(a) Dealer shall actively sell the products within Dealer's
territory.
(b) Dealer shall ensure that its sales staff are fully trained and
knowledgeable about the Products.
(c) MONTHLY REPORTS. Dealer shall deliver to the Distributor and
Corporation no later than the tenth (10th) day after the end of
each calendar month a written report in regard to operations of
the Dealer for the preceding calendar month.
(d) ADVERTISING AND PROMOTION. The Dealer agrees to conduct, at its
own expense, reasonable advertising and public relations
campaigns for Products and to attend trade shows to remain
knowledgeable about the Products and competing products, and to
maintain website awareness for the Products. The Distributor and
Corporation reserve the right to inspect the records of the
Dealer to confirm the Dealer is promoting the products. Dealer
will have the option to purchase pre-printed promotional
materials prepared and printed by the Corporation or to create
and print Dealer's own promotional material using approved
product images, test, slogans, logos, videos and other
promotional items in an approved manner. New advertising and
promotional materials created by Dealer shall be submitted to the
Corporation for its written approval prior to the use of any such
material.
(e) LICENSES AND PERMITS. The Dealer agrees that it shall obtain any
and all licenses and permits which may be required under all
applicable law in order to perform the duties and obligations
hereunder.
6.2 Unless otherwise agreed in writing, Dealer shall purchase all
components related to the installation and operation of the
Corporation's products from the Distributor covering the territory in
which the product is to be installed. Dealer shall use only official
and approved parts supplied by the Distributor for the sales and the
installation of the products. This shall include without limitation
the domes, mirrors, lenses, lightwells, mid-trays and sun tracking
controllers. At the option of the Distributor, Dealer shall be allowed
to purchase security bars, light shades and curbs from third party
sources provided that these parts comply with and follow all the
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specifications provided by the Corporation and are submitted to the
Corporation for its written approval not to be unreasonably withheld
or delayed.
6.3 In the event that Dealer wishes to receive authorization to undertake,
or to designate third parties (other than customers/end users of the
Products) to undertake the installation of Corporation's Products,
Dealer and/or its designee shall first have received instruction from
Corporation's authorized installation instructors, and having
successfully completed such instruction, shall receive a certificate
of authorization as an Authorized Product Installer, and shall
thereafter comply with Corporation's official installation manual and
instructions shall receive a certificate of authorization as an
Authorized Product Installer, and shall thereafter comply with
Corporation's official installation manual and instructions.
Installations performed by unauthorized/uncertified personnel, not
installed in accordance with the official installation manual and
instructions, or otherwise improperly installed, may result in voiding
all or a portion of the Corporation's warranty for such Product.
6.4 Dealer will provide Distributor and Corporation with timely reports of
closed and pending sales on a regular basis to assist with forecasting
product demand. Dealer will provide copies of signed contracts,
pictures of installations and other such reasonable documentation
related to sale and installation of products requested by Distributor
or Corporation.
6.5 Dealer agrees to observe high standards of ethical conduct and
honestly represent the capabilities of Corporation's products. Dealer
undertakes to comply with the rules of fair competition and all other
applicable laws and regulations.
6.6 Dealer is authorized hire Independent Sales Reps that work directly
with Dealer. The Distributor and Corporation require that Dealer
provide all pertinent information such as: Name, address, and contact
information of appointed Sales Reps. The information provided by
Dealer shall be used for record keeping purposes only and held
confidential for so long as this agreement remains in effect and
Dealer is not otherwise in material breach hereof. Distributor will
provide product support to Dealers and Sales Reps provided that Dealer
respects Distributor's exclusivity as source of Products in the
Territory. Sales Reps will not knowingly sell or offer to provide
Products to or from sources or customers that violate Corporation's
exclusivity rights granted to Distributors.
6.7 Dealer will provide product training and support to its Sales Reps.
All of Dealer's Sales Reps shall process customer purchases through
the Distributor. Dealer and its Sales Reps shall not knowingly sell
product outside of Dealer's Territory or otherwise violate exclusivity
rights granted to Distributors or Dealers, if any.
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6.8 Except as expressly provided by this Agreement, any and all expenses
and/or charges connected with the fulfillment of the Dealer's
obligations and activity pertaining to this Agreement shall be
exclusively borne by the Dealer.
6.9 The Distributor's and Corporation's representatives may, upon prior
written notification, visit the Dealer's offices at any reasonable
time during normal business hours, in order to assist in the
improvement of the sales and marketing of the Products.
6.10 In the event any controllers are to be replaced for any reason under
the Corporation Warranty, Dealer shall return the replaced controller
in its original configuration, with all its original components intact
and unopened. The breaking of the Controller seal shall be prohibited
under this agreement. The breaking of a controller seal shall void the
warranty of the Controller and be considered a serious violation of
this agreement.
6.11 The Dealer shall comply with the pricing and discount policies set by
the Distributor in conjunction with the Corporation within the
Territory. Dealer may determine the compensation for its own Sales
Reps within Dealer's Territory but Corporation shall have the right to
terminate its agreement with Dealer and/or Distributor in the event
that the suggested retail price, including volume discount policies,
set by Corporation are not adhered to.
6.12 The Dealer agrees to provide the Distributor and Corporation with
regular information as is necessary to keep the Distributor and
Corporation up to date regarding sales of the Products, market trends,
and the products and advertising of competitors.
Article 7 - DUTIES OF CORPORATION & DISTRIBUTOR
During the term of this agreement, the Corporation and Distributor shall provide
Dealer with the following:
7.1 Provide Dealer with branding and marketing material in English,
including artwork, logos, photos, written copy, product specifications
and other materials that can be used by Dealer to create materials
necessary to promote the products.
7.2 To assist Dealer with sales and installation training. Corporation
will provide Dealer with the most current installation materials and
updated product information on a timely basis and will provide a
reasonable amount of installation training at a reasonable cost for
Dealer's personnel or third party designees in order for them to
achieve certification as Authorized Product Installers.
7.3 Provide Dealer with a listing as a Dealer for the Territory on the
Corporation's website.
7.4 Provide Dealer with ongoing communications regarding market
intelligence and other relevant information pertaining to the
Corporation's Products.
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7.5 Provide a warranty for the products in accordance with Article 10
herein. Corporation shall provide Dealer with 90 days advance notice
of any changes in the warranty terms and conditions offered by the
Corporation. In the event Corporation changes the warranty, Dealer
shall have 45 days from said notice to determine whether to continue
this agreement or at its option may elect to discontinue this
agreement upon 30 days to Corporation. In the event the warranty
provisions are changed, the changes shall only apply to future
purchases made after the effective date of the change, and shall not
be retroactive to prior purchases.
7.6 Corporation and Distributor shall at all times have the right to
contact purchasers of the products within the territory to correct
issues, to assess the Customer's satisfaction with the product and the
service they are receiving, and repair products as may be needed.
Dealer shall maintain and provide contact information for purchasers
as requested by Corporation and in accordance with policies set by
Corporation.
7.7 Distributor shall maintain sufficient Inventory of product and parts
and/or capacity to timely fulfill Dealer's orders which it has
received and confirmed and for which, if applicable, Dealer has paid
any requisite deposit. Subject to the terms and conditions of this
agreement, Distributor undertakes to accept, confirm and fulfill all
product related orders placed by Dealer during any period during the
term of this Agreement commencing on the Effective Date of this
agreement.
7.8 Lead time for the shipment of Dealer Purchase Orders shall be 15 days.
Upon receipt of a purchase order from Dealer, Distributor shall submit
to Dealer a written Sales Order as acknowledgement of each purchase
order within two (2) business days of the receipt. Dealer shall sign
and return each sales order to confirm Dealer's acceptance of the
terms of the sale and delivery schedule once agreed upon.
7.9 Unless stated otherwise, prices, shipments and risk of loss for any
product purchased by Dealer from Distributor are Ex Works the
Distributor's facilities. Subject to the conditions of Article 5, risk
of loss passes to Dealer in accordance with the definition of Ex Works
in Incoterms 2000.
7.10 Dealers and Sales Reps must comply with policies set by the
Distributor in conjunction with the Corporation and must purchase
product through the Distributor for installations within the
Territory.
7.11 Corporation reserves the right to terminate an Independent Sales Rep
or demand that Dealer terminate any Sales Rep whether recruited by a
Distributor, Dealer or Corporation for violating the Corporation's
professional standards or violating the terms of their agreement or
that fails to meet agreed upon sales targets, if applicable.
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7.12 Corporation agrees not to circumvent Dealer or to sell directly or
indirectly to an existing or prospective customer of Dealer during the
term of this Agreement and for a period of one year after the
expiration of this Agreement provided that such restriction shall not
apply if this agreement is terminated for good cause such as, by way
of example, but not limitation, if Dealer shall undertake to sell
competing products to end-users or to violate the pricing or discount
policies of Corporation and Distributor.
Article 8 - MINIMUM PURCHASES
8.1 The minimum purchases to be made by Dealer during each twelve (12)
month period of the Term of this Agreement, commencing with the second
(2nd) twelve (12) month period of the Term, are as follows:
(a) Accepted orders for one thousand (1,000) units during the second
calendar year of the Term.
(b) Accepted orders for one thousand two hundred fifty (1,250) units
during the third calendar year of the Term.
(c) Thereafter, the minimum number of accepted orders shall increase
by five (5) percent per each calendar year.
8.2 Either party shall be entitled to terminate this Agreement as provided
in Article 11 in the event that the quantity of Products ordered from
Dealer in Territory has not reached the target as set forth above,
during each period.
8.3 Corporation's Products shall not constitute less than five percent
(7%) of the total annual sales of the Dealer during each year of the
Term beginning in the second year.
Article 9 - EXCLUSIVITY
9.1 During the Term, the Dealer shall not, directly or indirectly (by
equity or management participation, beneficial ownership, rendering of
advice or consultation, contractual arrangement or otherwise), solicit
orders for, sell, distribute or otherwise deal in, any products
competitive with the Products.
9.2
9.3 EXCEPTIONS TO LIMITATIONS ON DIRECT DEALING. Notwithstanding anything
to the contrary in this agreement, Corporation may designate house
customers which shall be excluded from this agreement. House Customer
shall mean a subsidiary, franchisee or company owned facility of a
multinational company that operates in at least eight countries or a
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national company with at least two hundred locations within the United
States. A House Customer may also be a Federal Government account,
including any branch of the military even though a military base or a
Federal Government facility may be located within a given Dealer's
Exclusive Territory. Where the Corporation enters into an agreement to
provide Products to a multi-national company or national company,
referred to as House Customers, Corporation or the Distributor, Dealer
or Sales Rep that secured the House Customer shall be allowed to sell
to the company within any Territory. In addition, Corporation may at
its option enter into an agreement with a Multi-national company or
National Company with at least a half billion in annual revenues to
Private Label the products covered by this agreement for sale in any
Territory as an exclusion to this agreement provided the products are
promoted and sold under a different name and trademark. Corporation
shall maintain a list of House Customers and Private Label Companies
and notify Dealer as changes occur. In addition to House Customers and
Private Label companies, a list of pre-existing exclusions, if any, to
this Agreement are listed in Exhibit E.
9.4 SHARED TRANSACTIONS. Dealer agrees to only market and sell products
within Dealer's Territory. In the event Dealer services national
accounts or accounts that subsume or have establishments in multiple
territories (other than House Customers) including the Exclusive
Territories of other Dealers, then Dealer shall not actively solicit
business within any Exclusive Territory of another Dealer butin the
event Dealer sells product that is to be installed in the Exclusive
Territory of another Dealer, unless otherwise mutually agreed by the
parties involved, the fees or profit from any such transaction shall
be split using the following formula:
(a) 65.0% of the total profit or commissions shall be earned by the
Dealer responsible for procuring the transaction.
(b) 35.0% of the total Profit or commissions shall be earned by the
Exclusive Dealer for the territory in which the product is to be
installed.
(c) The Dealer that initiates the transaction shall have the first
right to complete the installation for their customer (provided
they are or designate Authorized Product Installer to do so). In
the event initiating Dealer elects not to complete the
installation, the Exclusive Dealer shall have the right to
complete or contract for the installation as provided under their
Dealer Agreement. 100% of the installation fees shall be retained
by the entity that is responsible for the actual installatio of
the Product unless agreed otherwise between the parties involved.
(d) In the event two or more Dealers find that they are bidding on
the same project and one of the Dealers is the Exclusive Dealer
for the Territory in which the project is located, the priority
shall go to the Exclusive Dealer in whose territory the project
is located and the non-exclusive Dealer shall withdraw its bid.
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9.5 PROCURING CAUSE. In the event there is a conflict between Dealer and
another Dealer, distributor or a sales rep regarding who is the
procuring cause for a transaction then the Corporation shall review
the facts and make a determination based on the documentation provided
by the parties involved. In resolving the conflict the corporation
shall consider the amount of communication as well as the content of
the communication with the purchaser, agreements if any signed by the
purchaser designating an individual or company as their
representative, and the facts leading up to the purchaser's decision
to place an order for the products. Great consideration will be given
to the preference of the purchaser if the purchaser makes a decision
on who they want to represent them. Merely contacting an individual or
company with product information does not make a Dealer, Distributor
or Sales Rep the procuring cause for a transaction. The decision of
the Corporation shall be final. Corporation may determine that more
than one party contributed to the procuring cause for a transaction
and split any fees or profits between the parties. All parties agree
to submit supporting documentation within five days to corporation
upon request by Corporation.
Article 10- WARRANTY
10.1 THE CORPORATION WARRANTS TO THE DEALER EACH PRODUCT SOLD BY IT TO BE
FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP, WHEN PROPERLY
MAINTAINED UNDER NORMAL USE, FOR A PERIOD OF TWELVE (12) MONTHS FROM
THE DATE OF PURCHASE BY THE DEALER OF THE PRODUCT (THE AWARRANTY
PERIOD"). A COPY OF THE WARRANTY IS ATTACHED HERETO AS EXHIBIT "C"
10.2 PRODUCTS WHICH DO NOT CONFORM TO THEIR DESCRIPTION OR WHICH ARE
DEFECTIVE IN MATERIAL OR WORKMANSHIP WILL, BY THE CORPORATION'S
DECISION, BE REPLACED OR REPAIRED, OR, AT THE CORPORATION'S OPTION,
CREDIT FOR THE ORIGINAL PURCHASE PRICE MAY BE ALLOWED PROVIDED THAT
DEALER NOTIFIES THE CORPORATION IN WRITING OF SUCH DEFECT WITHIN
THIRTY (30) DAYS OF DISCOVERY AND DEALER RETURNS SUCH PRODUCTS IN
ACCORDANCE WITH THE CORPORATION'S INSTRUCTIONS. NO PRODUCTS MAY BE
RETURNED BY THE DEALER WITHOUT THE CORPORATION'S PRIOR WRITTEN
AUTHORIZATION.
10.3 THIS WARRANTY DOES NOT APPLY TO ANY PRODUCT WHICH HAS BEEN SUBJECTED
TO MISUSE, ABUSE, NEGLIGENCE OR ACCIDENT BY THE DEALER OR THIRD
PARTIES. THE WARRANTY FOR THE CONTROLLER SHALL BECOME VOIDED IF THE
SEAL OF THE GPS CONTROLLER UNIT IS BROKEN FOR ANY REASON.
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10.4 THE CORPORATION MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND
WITH RESPECT TO THE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, THAT OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR USE. FAILURE TO MAKE ANY CLAIM IN WRITING, OR WITHIN THE
THIRTY (30) DAY PERIOD SET FORTH ABOVE, SHALL CONSTITUTE AN
IRREVOCABLE ACCEPTANCE OF THE PRODUCTS AND AN ADMISSION BY THE DEALER
THAT THE PRODUCTS FULLY COMPLY WITH ALL TERMS, CONDITIONS AND
SPECIFICATIONS OF DEALER'S PURCHASE ORDER. THE CORPORATION SHALL NOT
BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO,
DAMAGE OR LOSS RESULTING FROM INABILITY TO USE THE PRODUCTS, INCREASED
OPERATING COSTS OR LOSS OF SALES, OR ANY OTHER DAMAGES. TO MAKE A
CLAIM UNDER THIS WARRANTY, DEALER MUST NOTIFY THE CORPORATION IN
WRITING WITHIN THE WARRANTY PERIOD.
10.5 THE FOREGOING CONSTITUTES THE DEALER'S SOLE AND EXCLUSIVE REMEDY AND
THE CORPORATION'S SOLE OBLIGATION WITH RESPECT TO PRODUCTS FURNISHED
HEREUNDER.
Article 11 - TERM AND TERMINATION
11.1 The duration of this Agreement shall be for a period of twenty four
(24) months (the "Initial Term") and shall be renewable for up to
three (3) additional one year terms provided that Dealer shall have
achieved the minimum sales volume requirements as set forth herein, or
as otherwise modified and agreed upon between the parties during each
annual review of sales activities and provided that dealer is not
otherwise in breach hereof and unless either party hereto gives to the
other party written notice to terminate this Agreement no later than
ninety (90) days prior to the end of the Initial Term or any Renewal
Term. The Initial Term and the Renewal Term are hereinafter
collectively referred to as the "Term".
11.2 Anything in section 11.1 above to the contrary notwithstanding, this
Agreement may also be terminated at any time by the Corporation
immediately upon written notice to the Dealer in the event that after
the date hereof:
(a) Dealer breaches its covenants of exclusivity set forth in Article
9 hereof;
(b) The Dealer fails to comply with the applicable federal, State and
local laws and regulations, pursuant to section 6.8 above;
(c) The Dealer fails to achieve the minimum purchase requirements set
forth in Article 8 hereof;
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(d) The Dealer fails to comply with the price and payment term
provisions set forth in Article 4 hereof;
(e) The Dealer sells product outside of Dealer's Territory more than
two times; or,
(f) The Dealer fails to meet the reasonable advertising requirements,
set forth in 6.1(d) above.
11.3 Anything in section 11.1 or 11.2 above to the contrary
notwithstanding, this Agreement may also be terminated at any time by
either party immediately upon written notice to the other party in the
event that after the date hereof:
(a) Either party shall suspend or discontinue its business, or shall
make an assignment for the benefit of, or composition with,
creditors, or shall become insolvent or be unable or generally
fail to pay its debts when due, or either becomes in any
jurisdiction a party or subject to (voluntarily or involuntarily)
any liquidation or dissolution action or proceeding with respect
to itself, or to any bankruptcy, reorganization, insolvency or
other proceeding for the relief of financially distressed debtors
is commenced with respect to it, or a receiver, liquidator,
custodian or trustee shall be appointed for it, or a substantial
part of its assets (and with respect to any involuntary action or
proceeding, an order entered in the proceeding is not dismissed
within thirty (30) days) or it shall take any action to effect or
which indicates its acquiescence in any of the foregoing;
(b) A change in control of either party takes place. For the purposes
of this agreement, "control" shall mean possession, directly or
indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities
or partnership or other ownership interest, by contract or
otherwise);
(c) Either party attempts to assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
other party; or
(d) Either party materially breaches any provision of this Agreement
and fails to cure such default within thirty (30) days of receipt
of written notice thereof, with the exception of the reasons for
default set forth in 11.2 above, the occurrence of which give the
Corporation the right of immediate termination.
11.4 PROCEDURE UPON TERMINATION. Upon termination of this Agreement, the
Corporation is entitled to restrict or cease deliveries of the
Products to the Dealer, including deliveries on orders already
received at the time of the notice of termination. Also upon
termination of this Agreement, the Dealer shall cease to have any
rights, liabilities or obligations hereunder, with the exception of
the Dealer's obligations under Article 10, Article 13, and Article 14,
which obligations shall survive termination. Notwithstanding the
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foregoing, except in the event of termination by the Corporation
pursuant to Section 11.3(a) above, the Corporation is required to make
the Products available to the Dealer in such quantities so as to
enable the Dealer to maintain the Dealer's own delivery commitments
existing before the effective date of termination, subject to proof
being given by the Dealer to the Corporation that it was under
unconditional contractual obligations at the time it received notice
of termination to make deliveries which it can not fulfill from its
inventory. After any notice of termination is given, the Corporation
may modify the terms of payment for any subsequent shipment.
11.5 EFFECT OF TERMINATION. Upon termination or expiration of this
Agreement, all of the Dealer's rights with respect to the Trade-marks
shall immediately cease, provided, however, that the Dealer may
utilize the Trademarks to sell any Products remaining in inventory or
otherwise delivered after the said expiration or termination for a
period of six (6) months from the date of termination.
Article 12 - DEALER FEE
12.40 Inconsideration for being appointed as a Dealer for the Territory,
Dealer shall pay to Corporation a Dealer Fee in the amount of $3,000
payable $1,500 upon execution of the agreement and $250 paid each
month commencing in the sixth month until paid in full.
Article 13 - CONFIDENTIALITY
13.1 CONFIDENTIAL INFORMATION. During the Term hereof and thereafter, the
Dealer agrees to keep secret all Confidential Information and will
take all steps and institute any internal secrecy procedures which may
be necessary to maintain the secrecy of the Confidential Information
and further agrees that it shall not use the Confidential Information
except in connection with the performance of its obligations under
this Agreement. Upon termination of this Agreement, Dealer shall
immediately cease to use the Confidential Information and shall return
to the Corporation all documents and copies in its possession or
control which in any way embody or evidence the Confidential
Information. As used herein, the term "Confidential Information" shall
mean all information disclosed to the Dealer or otherwise acquired by
the Dealer in connection with its performance of its obligations under
this Agreement, concerning or relating in any way to the markets,
customers, Products, procedures, plans, operating experience,
marketing strategies, organization, employees, financial conditions or
plans or business of the Corporation, its subsidiaries or Affiliates,
except for such knowledge or information which: (i) is or later
becomes publicly known under circumstances involving no breach of this
Agreement by the Dealer; (ii) was already known to the Dealer at the
time it received the information or knowledge; (iii) is made available
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to the Dealer by a third party without secrecy obligation and without
breach of its obligations to the Corporation; or (iv) the Dealer is
required by law to divulge.
Article 14 - TRADEMARKS
14.1 During the Term of this Agreement, the Dealer shall have the limited,
non-exclusive, royalty-free right to use the Trademarks in connection
with the promotion and sale of Products in the Territory, provided
however that the Dealer obtain the Corporation's prior written consent
to use the Trademarks in catalogues, promotional materials, and
advertising materials.
14.2 Use of the Trademarks shall conform to the following requirements:
(a) The Dealer shall not use the Trademarks in any manner other than
as set forth in Section 14.1 above without the prior written
approval of the Corporation.
(b) The Dealer shall not put or retain the Trademarks in the Dealer's
own name or any business name;
(c) The Dealer shall not use the Trademarks in any manner which
suggests an affiliation with the Corporation other than that of
Dealer of the Products;
(d) The Dealer shall not add to, or use with, the Trademarks, any
other trade name, trademark, symbol or device without the prior
written approval of the Corporation.
(e) The Dealer shall employ any symbol or notice with the Trademarks
which the Corporation advises is necessary, from time to time, to
identify and protect the interest of the Corporation in the
Trademarks.
(f) The Dealer shall apply no other trade name or trade name, nor any
labels, signs or markings of any kind to the Products without the
prior written consent of the Corporation.
14.3 The Dealer hereby acknowledges that the Corporation (or Licensors of
the Corporation) are the sole owners of the Trademarks and the
goodwill pertaining thereto and that nothing contained herein shall
constitute an assignment of the Trademarks or grant to Dealer any
right, title or interest therein, except the right to use it as set
forth in this Article 14. The Dealer agrees that it will not contest
the Corporation's (or the Corporation's Licensors') ownership of the
Trademarks, either during or after the Term.
14.4 The Dealer shall notify the Corporation in writing of any infringement
of the Trademarks in the Territory, of any applications or
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registrations for the Trademarks or marks similar to the Trademarks
within the Territory, of any suit or proceeding or action of unfair
competition involving the Trademarks in the Territory, promptly after
it has notice thereof.
14.5 The Dealer agrees that, upon the termination of this Agreement, it
shall have no interest in or right to use the Trademarks in any manner
or for any purpose whatsoever, except for the limited right to sell
its then remaining inventory of Products bearing the Trademarks.
14.6 If the Dealer acquires any rights to the Trademarks for any reason, it
undertakes to promptly return such rights to the Corporation
immediately and without expense to the Corporation.
14.7 The Corporation represents and warrants to the Dealer that (i) it is
the registered owner of the Trademarks and/or is the sole authorized
licensee of such Trademarks in the Territory, pursuant to valid
license agreements and (ii) it has the right, power and authority to
enter into this Agreement and to grant to the Dealer the rights
granted hereby.
Article 15 - INDEMNIFICATION
15.1 Dealer shall indemnify, defend, and hold harmless the Corporation, its
employees, officers, directors, agents, and representatives (each of
the foregoing hereinafter referred to as "Indemnified Party") of,
from, and against any and all claims, penalties, demands, causes of
actions, damages, losses, liabilities, costs, and expenses including
reasonable attorneys' fees, of any kind or nature whatsoever, arising
out of or in any manner directly or indirectly related to Dealer's
obligations under this Agreement, except to the extent attributable to
the negligence or willful misconduct of the Corporation, its
employees, officers, directors, agents, and representatives.
15.2 The Corporation shall indemnify, defend, and hold harmless Dealer, its
employees, officers, directors, agents, and representatives (each of
the foregoing hereinafter referred to as "Indemnified Party") of,
from, and against any and all claims, penalties, demands, causes of
actions, damages, losses, liabilities, costs, and expenses including
reasonable attorneys' fees, of any kind or nature whatsoever, arising
out of or in any manner directly or indirectly related to the
Corporation's obligations under this Agreement, except to the extent
attributable to the negligence or willful misconduct of Dealer, its
employees, officers, directors, agents, and representatives.
15.3 Notwithstanding anything contained herein, the Corporation or Dealer,
as the case may be (hereinafter referred to as "Indemnifying Party")
shall not have any liability under the indemnity provisions of this
Agreement with respect to a particular matter unless a notice setting
forth in reasonable detail the breach or default which is asserted has
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been given to Indemnifying Party within the applicable statute of
limitations and, in addition, if such matter arises out of a suit,
action, investigation, claim or proceeding, such notice is given
reasonably promptly after the Indemnified Party shall have been given
notice of the commencement of a suit, action, investigation, claim or
proceeding.
15.4 Upon receipt of notice of any suit, action, investigation, claim or
proceeding for which indemnification might be claimed by an
Indemnified Party, Indemnifying Party shall be entitled promptly to
defend, contest or otherwise protect against any such suit, action,
investigation, claim or proceeding at its own cost and expense.
Indemnifying Party shall have the right to settle or compromise any
such suit, action, investigation, claim or proceeding, without the
consent of the Indemnified Party; provided that such settlement or
compromise does not require Indemnified Party to pay any money and
requires the claimant to unconditionally release Indemnified Party
from all liability with respect to such claim or litigation.
Indemnified Party shall have the right, but not the obligation, to
participate at its own expense in a defense thereof by counsel of its
own choosing, but Indemnifying Party shall be entitled to control the
defense unless Indemnified Party has relieved Indemnifying Party from
liability with respect to the particular matter. In the event
Indemnifying Party undertakes the defense of such matters, Indemnified
Party shall not be entitled to recover from Indemnifying Party any
legal or other expenses incurred by Indemnified Party in connection
with the defense thereof.
Article 16 - INSURANCE
16.1 Corporation and Dealer shall each obtain and keep in force, at its
sole expense, product liability insurance providing adequate insurance
against any claims and suits involving product liability arising out
of, or with respect to, the transactions contemplated by this
Agreement, in an amount not less than One million dollars
($1,000,000.00) combined single limit on bodily injuries and/or
property damage. Within thirty (30) days after the date of this
Agreement, each party shall submit to the other a certificate of
insurance naming each other as an additional insured and providing
that any cancellation or material change or alteration which reduces
coverage or any benefits accruing to the other party shall become
effective only upon thirty (30) days prior notice to the other party.
The requirements of this Article are acknowledged by each party to be
a material term of this Agreement.
Article 17 - FORCE MAJEURE
17.1 Neither party hereto shall be liable to the other for delay in any
performance or for the failure to render any performance under this
Agreement when such delay or failure is a direct result of any present
or future statute, law, ordinance, regulation, order, failure to
deliver on the part of its suppliers, judgment or decree, act of God,
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earthquake, epidemic, explosion, lockout, boycott, strike, labor
unrest, riot, war, or similar catastrophic occurrence.
17.2 In the event of any such delay or failure, the affected party shall
send written notice by fax of the delay or failure and the reason
thereof to the other party within fourteen (14) calendar days from the
time the affected party knew or should have known of the Force Majeure
in question.
17.3 The provisions of this Article shall not be applicable to any
obligation involving the payment of money.
Article 18 - GENERAL PROVISIONS
18.1 GOVERNING LAW. This Agreement and all sales and commission
transactions pursuant hereto shall be governed by the laws of the
State of California, United States of America, but without reference
to the choice of law provisions thereof.
18.2 NOTICES. Any notice, request, demand, waiver, consent, approval or
other communication required to be given pursuant to this Agreement
(each, a "Notice") shall be in writing to the Party's respective
addresses as set forth in the Preamble of this Agreement, or to any
other address, if to Corporation to the Attention of Mr. Ray Torres
and if to Dealer to the Attention of Mr. Roei Shimon, as either Party
may designate by giving a written notice to the other, and be deemed
effectively delivered:
(a) If delivered personally, upon the date of delivery;
(b) If registered mailed, within 7 working days from the dispatch
thereof;
(c) If delivered by Federal Express or other similar services 3
working days from the dispatch thereof;
(d) If delivered by facsimile, within 24 working hours from the
dispatch thereof.
(e) All Notices are to be given or made to the parties at the
addresses appearing on the first page hereof, or to such other
address as any party may designate by a Notice given in
accordance with the provisions of this Section 18.2.
18.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with Exhibits
hereto, contains the entire agreement and understanding of the parties
hereto with respect to the matters herein set forth, and all prior
negotiations and understandings relating to the subject matter of this
Agreement are merged herein and are superseded and canceled by this
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Agreement. This Agreement may not be modified except in writing,
signed by both of the parties hereto.
18.4 TIME OF ESSENCE. Time is of the essence for the performance of each
and every covenant and the satisfaction of each and every condition of
this Agreement.
18.5 COVENANT NOT TO COMPETE. As a material inducement to the Corporation
to enter into this Agreement, Dealer agrees that Dealer shall not
engage in any business activity with any of the Corporation's
suppliers (the identity thereof constituting proprietary information
and trade secrets of the Corporation) during the term of this
agreement and for a period of three years after the termination of
this agreement unless otherwise agreed in writing by Corporation.
18.6 WAIVER. The failure by the Corporation to require the performance of
any term of this Agreement or the waiver by the Corporation of any
breach under this Agreement shall not operate or be construed as a
waiver of any subsequent breach by the Dealer hereto.
18.7 ASSIGNMENT. Neither party shall assign its rights nor delegate the
performance of its duties or other obligations under this Agreement,
including any claims arising out of or connected with this Agreement,
without the prior written consent of the other party.
18.8 ARBITRATION. Except with respect to equitable remedies provided
herein, including, without limitation, injunction relief, all claims,
demands, disputes, controversies, differences or misunderstandings
arising out of or relating to this Agreement, or the failure or
refusal to perform the whole or any part thereof, shall be referred to
and finally resolved by arbitration to be administered by the
International Centre for Dispute Resolution, a division of the
American Arbitration Association ("AAA"), in accordance with its
Commerical Arbitration Rules then obtaining (the "AAA Rules"). The
arbitration shall be conducted before one arbitrator to be selected by
agreement of the parties or, if no agreement can be reached, in
accordance with the AAA Rules. The arbitration shall be conducted
using the English language for all purposes. Either party hereto may
initiate the arbitration by serving a written demand for arbitration
on the other party, which demand shall contain a description of the
nature of the dispute. All hearings of the arbitration shall take
place in Los Angeles, California, United States of America.
The initial fees and costs of the arbitration shall be borne equally
and paid timely by each party hereto. Failure by a party to pay said
fees and costs to the AAA timely shall constitute a material default
under this Agreement. The award shall be final and binding upon the
parties, and the parties agree to be bound by the terms of the award
and to act accordingly. The judgment upon any award may be entered in
and enforceable by any court having jurisdiction over the party
against whom the award has been rendered or wherever the assets of the
party are located. Any award for costs shall include attorney fees.
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The parties hereto, and each of them, hereby submit themselves to the
jurisdiction of the state courts of the State of California and the
United States Federal District Court in California in any proceeding
for the enforcement of the award rendered by the arbitrator, and agree
that judgment upon such award may be entered in any court, in or out
of the State of California, having jurisdiction thereof. The
arbitrator shall rule in accordance with the laws of California,
without giving affect to the rules of conflict of laws thereof. The
parties to the proceeding shall have reasonable rights of discovery in
accordance with the Civil Rules of Federal Procedure used in the
United States District Court.
Nothing contained herein shall prevent either party from applying to
any court of law in order to obtain injunctions or any equivalent
remedy, against any other party, in order to restrain the breach of
any restrictive covenants pursuant to this Agreement.
18.9 LETTER OF APPOINTMENT. A Letter of Appointment, in the form attached
hereto as Exhibit "D" shall be furnished by Corporation to Dealer
concurrently with the signature of this Agreement. Dealer shall be
entitled, at its sole discretion, to show such letter to any person in
order to evidence Dealer's appointment hereunder. Upon the termination
of this Agreement, the Letter of Appointment shall automatically
terminate forthwith and shall not be utilized any further by Dealer.
18.10 The terms and conditions herein contained, constitute the entire and
only contract between the Parties hereto with respect to the subject
matter hereof and shall supersede all previous communications,
representations and/or agreements, either written or oral, between the
Parties in respect of such subject matter. No modification of terms
and conditions of this Agreement shall be binding unless agreed upon
in writing and signed by both Parties.
18.11 Each Party hereby warrants, confirms and undertakes that:
(a) It has the corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated
therein;
(b) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary corporate action and this
Agreement constitutes a valid, legal and binding agreement of
such party, enforceable against it in accordance with its terms;
(c) Neither the execution and delivery of this Agreement by it nor
the consummation of the transactions contemplated hereby will (i)
violate, or result in a default under any note, agreement,
contract, understanding, arrangement, restriction or other
instrument or obligation to which it is a party or by which it
may be bound; or (ii) violate any order, award, injunction,
judgment or decree to which it is subject.
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18.12 SEVERABILITY. In case any one or more provisions contained in this
Agreement or any application thereof shall be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and other
applications thereof shall not in any way be affected or impaired
thereby.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date first above written.
CIRALIGHT GLOBAL, INC.
Per: /s/ Randall Letcavage
-----------------------------------------
Name: Randall Letcavage
Title: CEO
ECO-SMART, INC.
Per: /s/ Matt Ross
-----------------------------------------
Name: Matt Ross
Title: President
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EXHIBIT "A"
PRODUCTS AND TRADEMARKS
PRODUCTS:
SuntrackerOne & related components
SuntrackerTwo & related components
TRADEMARKS AND SLOGANS
Ciralight
Ciralight Global
Leading the Daylighting Revolution
Daylight on, lights off
Intelligent Skylights
Smart Skylights
SuntrackerOne
SuntrackerTwo
EXHIBIT "B"
PRICE LIST
(Attached)
EXHIBIT "C"
PRODUCT WARRANTY
(Attached)
EXHIBIT "D"
LETTER OF APPOINTMENT
(Attached)
EXHIBIT "E"
EXCLUSIONS
Ikea
Firestone Building Products
Staples
Globalight Energy Solutions, LLC
Fresh & Easy