EXHIBIT 10.20
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MASTER SALES AGREEMENT
This MASTER SALES AGREEMENT ("Agreement") is made and entered into as of
this 1st day of May 2006 (the "Effective Date") by and between DynaSig
Corporation, an Arizona Corporation, with its principal place of business at
1711 W. Greentree Dr., Suite 116, Tempe, Arizona, 85284 ("DYNASIG") and Delta
Resources LLC, an Arizona limited liability company, with a place of business at
12402 E. Saddle Horn Trail, Scottsdale, AZ 85259 ("DELTA").
RECITALS
A. DYNASIG develops and markets products for security identification and
private personal verification and it wishes to expand its sales
opportunities.
B. DELTA has assembled a team of sales representatives, each of whom wishes to
act as a sales representative to sell DYNASIG's products within specified
United States and Canadian geographic markets.
C. DYNASIG desires to appoint DELTA to act as its sales agency with respect to
the sale of its products using sales representatives selected by DELTA all
upon the terms set forth in this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and the promises,
representations and warranties set forth below, DYNASIG and DELTA agree as
follows:
ARTICLE 1. - DEFINITIONS
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For purposes of this Agreement, the following terms shall have the meaning
and definition set forth below:
1.1 "Products" shall mean and refer collectively, to those products
listed on Exhibit A to this Agreement, as may be specifically updated from time
to time by DYNASIG in writing in its sole discretion.
1.2 "Territory" shall mean and include those geographic areas of United
States, as listed on the attached Exhibit B, and other areas that are mutually
agreed to in writing from time to time and will be shown on a separate addendum
to this Agreement. DELTA may solicit product sales on behalf of DYNASIG within
appointed territory. The Territory is broken down in to sub-territories
(individually a "Sub-Territory" and collectively "Sub-Territories") for the
purpose of defining territories for sub agents appointed by DELTA.
1.3 "Confidential Information" shall mean all data and information
deemed by either party to this Agreement to be of a confidential nature,
including price lists, know how, and trade secrets relating to the business, the
affairs, the Products, any development projects or other materials or services
of either party. Confidential Information may be communicated orally, in
writing or in any other recorded or tangible form. In addition to the
foregoing, data and information shall be considered to be Confidential
Information: (i) if either party has marked
them as such, (ii) if either party, orally or in writing, has advised the other
of their confidential nature, or (iii) if, due to their character or nature, a
reasonable person in a like position and under like circumstances as each party
would treat them as secret and confidential. Notwithstanding the foregoing, the
customer lists of the parties that are shared pursuant to this Agreement shall
not be deemed to be "Confidential Information" solely as between the parties for
all purposes of this Agreement.
1.4 "Intellectual Property Rights" shall mean and include all patents,
copyrights, trademarks, service marks, trade names and other proprietary rights
or applications therefore which DYNASIG may at any time own, adopt, use, or
register with respect to the Products or the business of DYNASIG.
1.5 "Person" shall mean and include any individual, corporation, trust,
estate, partnership, joint venture, company, association, league, governmental
bureau or agency, or any other entity regardless of the type or nature thereof.
1.6 "DYNASIG Trademarks" shall mean and include those trademarks and
service marks owned by DYNASIG and used on or in connection with the Products
from time to time and all trademarks, service marks and logos developed for
DYNASIG'S products during the commission of this DELTA contract and or any
extension thereof.
1.7 "Actual Sales Price" shall mean and include the price stated in a
sales confirmation issued by DYNASIG in response to an order, exclusive of tax,
duties, shipping, insurance, discounts and similar charges.
1.8 "DELTA Floor Price" shall mean and include the price for each of
the Products as set forth in Exhibit A attached to this Agreement.
ARTICLE 2. - APPOINTMENT
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2.1 Sale of Products. Subject to the further terms and conditions of
this Agreement, DYNASIG hereby appoints DELTA as a non-exclusive sales agent to
solicit orders for the Products in the Territory, and DELTA hereby accepts such
appointment. In furtherance of such appointment, DYNASIG also agrees that:
a) DELTA shall be permitted to appoint individual Sales Agents for a
Sub-Territory as defined by Article 1.2 herein (individually a "Sales
Agent" and collectively "Sales Agents");
b) Solicit on behalf of DYNASIG persons or businesses to become direct
distributors from DYNASIG of the Products in particular territories ("New
Distributors"). All potential Distributors must be pre-approved by DYNASIG
before solicitation.
2.2 Relationship Between Parties. DELTA and each Sales Agent will act
as an independent contractor under the terms of this Agreement and not as a
legal representative of DYNASIG for any purpose whatsoever. The Sales Agents
are listed on the attached Exhibit B, and any additions or changes must be
approved by DYNASIG. The copies of all agreements between DELTA and Sales
Agents shall be made available to DYNASIG for verification.
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Nothing in this Agreement shall be construed: (i) to give either party the
power to direct or control the daily activities of the other party, or (ii) to
constitute the parties, DELTA and DYNASIG as principal and agent, employer and
employee, franchisor and franchisee, partners, joint ventures, co-owners, or
otherwise as participants in a joint undertaking. DYNASIG and DELTA understand
and agree that, except as specifically provided for in this Agreement, DYNASIG
does not grant DELTA or any Sales Agent power or authority to make or give any
agreement, statement, representation, warranty or other commitment, on behalf of
DYNASIG, or to enter into any contract or otherwise incur any liability or
obligation, express or implied, on behalf of DYNASIG, or to transfer, release or
waive any right, title or interest of DYNASIG. However, nothing in this
Agreement shall prevent either DELTA or any Sales Agent from soliciting orders
for the sale of the Products in the Territory or from making statements about
the Products or the warranty for the Products which statements are consistent
with the warranty provisions published by DYNASIG or in concurrence with the
advertising and promotional materials DYNASIG supplies in relationship to the
products.
2.3 DYNASIG. DYNASIG will have the right to license manufacturers when
DYNASIG deems necessary. If any licensed manufacturer is located in the
Territory of and is one of DELTA's customers, then DYNASIG will pay a commission
to the DELTA (to be negotiated and agreed between the parties) for those units
manufactured by and consumed by the licensed manufacturer. This clause only
applies to prospective manufacturers, which have been pursued and delivered to
DYNASIG by DELTA's Sales Agents.
ARTICLE 3. - DUTIES OF DELTA
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3.1 General Conduct. DELTA shall use its best efforts to diligently
promote the sale of and to solicit orders for the Products, at its own expense,
in the Territory. DELTA will conduct its business in a manner that will reflect
favorably on DYNASIG and the Products and will not engage in any deceptive,
misleading, illegal or unethical business practice.
3.2 Sales Agents. DELTA shall appoint Sales Agents adequate to market
the Products in the Territory. The appointment of a Sales Agent for any
Sub-Territory shall be subject to the approval of DYNASIG. An initial list of
Sales Agents for approval is set forth in Exhibit B.
3.4 Compliance with Laws and Obligations. DELTA shall at all times
during the term of this Agreement strictly comply with all applicable regulatory
laws and other obligations of DELTA governing the distribution and sale of the
Products in the Territory. Such compliance shall include, but shall not be
limited to, the following duties:
a) DELTA shall keep DYNASIG generally informed of the regulatory
requirements imposed by the laws of the Territory and shall comply with all
those requirements that affect performance of its duties under this
Agreement. However, DYNASIG shall be solely responsible for ensuring that
the Products comply with all regulatory and licensing requirements of the
jurisdictions within the Territory
b) Each party shall disclose promptly to the other party all reports
and any information which become available to it relating to the efficacy,
side effects, toxicity or any instances of adverse or deleterious
physiological effects caused by or related to the Products;
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Both parties
acknowledge that such reports shall be considered Confidential Information
and neither party shall disclose such reports or information referred to
herein to any third party without the written consent of the other party,
unless such disclosure is required by law;
c) DELTA and its Sales Agents shall promptly make available to DYNASIG
any information which comes to their attention which may have an adverse
impact on DELTA's ability to perform its obligations hereunder, including,
but not limited to, correspondence from or demands made by any governmental
or regulatory authority or any other Person concerning DELTA's conduct of
its business;
3.5 Monthly Sales Reports. For the term of this Agreement, no less
than monthly, DELTA shall provide DYNASIG with a report of sales solicited by
each Sales Agent of the Products during the previous month and identify sales
prospects, all in a format approved by DYNASIG.
3.6 Record Keeping. DELTA shall, at all times during the term of this
Agreement, maintain or make available accurate books of account and records with
regard to its activities under this Agreement. Upon reasonable notice, DELTA
shall grant DYNASIG access during normal business hours to such books and
records in order that DYNASIG may verify compliance by DELTA with its
obligations under this Agreement.
3.7 Possession and Delivery. Nothing in this Agreement shall obligate
DELTA to take delivery or possession of the Products or to maintain any
inventory of the Products. Products sold pursuant to an order solicited by
DELTA or any Sales Agent shall be delivered to the customer according to the
terms applicable to a particular sale.
ARTICLE 4. - TERMS OF SALE
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4.1 General. DELTA and each Sales Agent shall solicit orders for the
sale of Products on behalf of DYNASIG at DYNASIG's published prices and
according to standard terms and conditions of sale published by DYNASIG. The
prices and standard terms and conditions of sale published as of the date of
this Agreement are those set forth in Exhibit A. Such terms and conditions may
be varied or amended by DYNASIG at its discretion at any time and from time to
time upon 30 days written notice to DELTA. Notwithstanding the generality of
the foregoing, all orders placed by DELTA and each Sales Agent shall be subject
to written approval by DYNASIG.
4.2 Procedure and Payment. Purchases by customers shall be initiated
by delivery to DYNASIG of an order duly executed by customer. Such orders may
be submitted directly by a Sales Agent. The orders shall not be binding until
accepted in writing by DYNASIG. Customers shall pay for all products in United
States Dollars (USD), pursuant to arrangements approved in advance by DYNASIG.
Title and risk of loss to all Products shall pass to customers upon receipt by
the common carrier at DYNASIG's plant.
4.3 Commissions, Warrants and Fees.
a) DYNASIG shall pay DELTA a cash commission ("Cash Commission"),
which shall be calculated as the difference between the Actual Sales Price
and the DELTA Floor
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Price. The Cash Commission shall be paid to DELTA by
DYNASIG within 15 days after the receipt of payment by DYNASIG. DELTA shall
specify the amount of Cash Commission to be paid to each of DELTA's Sales
Agents (if any), which is in DELTA's sole discretion. DYNASIG may at its
option act as DELTA's paying agent but in no way shall such act imply any
contractual relationship between such Sales Agents and the Company. In
cases where the customer has made special arrangements for payment, which
must be approved in advance by DYNASIG, in its sole discretion, DYNASIG
may, also in its sole discretion, advance Cash Commissions to the DELTA
even before the customer has paid for product. Any non payment under such
terms will be fully adjusted from DELTA's compensation. DELTA shall be
solely responsible for compensating each Sales Agent and shall indemnify
and hold harmless DYNASIG from any and all claims and/or liability in
respect of any claim for Cash Commission or otherwise made against DYNASIG
by a Sales Agent arising or resulting from this Agreement.
b) DYNASIG shall pay DELTA an additional commission in the form of
warrants (the "Commission Warrants") to purchase the common stock of
DYNASIG's parent company, Dynamic Biometric Systems, Inc. ("DBSI"). These
Commission Warrants will take the form of Exhibit C. DELTA shall specify
the number of Commission Warrants to be issued to DELTA and each of DELTA's
Sales Agents, which allocation is in DELTA's sole discretion. However, once
issued, the Commission Warrants are the property of the receiving party.
Any party receiving Commission Warrants will be required to make investment
representations regarding each issuance, which DBSI will be entitled to
rely on.
The total number of Commission Warrants to be issued to DELTA or its
Sales Agents for each period will be determined by a calculation whereby
the "Value of the Sale" (calculated as the difference between the Actual
Sales Price and the DELTA Floor Price) is divided by the exercise price of
a Commission Warrant established for the period in question. Such Exercise
Price shall be the market value of the shares to be acquired upon exercise.
The initial Commission Warrant exercise price shall be $0.75. DYNASIG, in
its sole discretion, shall determine such market value at the beginning of
each of DYNSIG's fiscal quarters.
DYNASIG shall accumulate and issue the Commission Warrants to DELTA
and its Sales Agents quarterly. All Commission Warrants shall have an
expiration of not less than two years from their date of issue. DELTA shall
be solely responsible for compensating each Sales Agent and shall indemnify
and hold harmless DYNASIG from any and all claims and/or liability in
respect of any claim for Commission Warrants or otherwise made against
DYNASIG by a Sales Agent arising or resulting from this Agreement.
DELTA shall and shall cause its Sales Agents to execute whatever
investment documentation necessary to make allow for the issuance of the
Commission Warrants under state and federal securities laws.
c) To be eligible for a commission, a sale must result primarily from
the direct sales efforts of DELTA or its Sales Agents.
d) Management fees. Management fees of four thousand dollars (US) per
month ($4,000/month) shall be paid, upon commencement of this Agreement, at
the beginning of each month and prorated for a partial month. Fees for the
first two months shall be accrued by DYNASIG with DELTA accepting deferred
payment. The deferred payments shall be repaid at
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the rate of two thousand
dollars per month ($2,000/month) for four months in addition to the normal
monthly fees.
4.4 Returns. In the event that the return to DYNASIG of any Product by
a customer solicited pursuant to this Agreement shall result in the refund of
the purchase price or any part thereof in respect of such Product, there shall
be deducted from the payment of future Cash Commissions hereunder any commission
previously paid to DELTA in respect of such returned Product. Commission
Warrants related to such transactions already issued shall be surrendered back
to the Company and be partially or fully cancelled depending on the
circumstances of their original issuance.
4.5 Record Keeping. DYNASIG shall, at all times during the term of
this Agreement, maintain or make available accurate books of account and records
with regard to sales made by it to customers solicited by DELTA or its Sales
Agents under this Agreement and commissions payable thereon. Upon reasonable
notice, DYNASIG shall grant DELTA access during normal business hours to such
books and records in order that DELTA may verify compliance by DYNASIG with its
obligations under this Agreement.
ARTICLE 5. - TRAINING AND SUPPORT
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5.1 Training and Support. Upon DELTA's reasonable request, DYNASIG
will provide DELTA and its Sales Agents with training related to the Products
and the use of the Products. The timing and extent of such training shall be
mutually agreed upon by DYNASIG and DELTA. In addition, upon the reasonable
request of DELTA, DYNASIG will cooperate and assist DELTA in performing any
training or support with any customers to whom Products are sold as a result of
this Agreement. DYNASIG also agrees to provide DELTA and its Sales Agents with
demonstration systems, copies of all advertising and promotional materials
related to the Products.
ARTICLE 6. - COOPERATION BY DYNASIG
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6.1 Cooperation by DYNASIG. DYNASIG agrees to cooperate with DELTA and
to provide it and its Sales Agents with reasonable assistance in the sale of
Products under this Agreement.
ARTICLE 7. - INTELLECTUAL PROPERTY RIGHTS
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7.1 Acknowledgment. DELTA acknowledges and shall cause its Sales
Agents to acknowledge that DYNASIG has exclusive rights, title and interest in
and to any and all Intellectual Property Rights.
7.2 Notices, Marks, Legends and Name. DYNASIG hereby grants to DELTA
and to its Sales Agents the right to use the DYNASIG Trademarks, but only in
connection with the solicitation of sales of the Products in the Territory and
subject to DYNASIG's prior approval in writing of any advertising or promotion
of the Products. DELTA and its Sales Agents shall use the DYNASIG Trademarks
with respect to all sales solicitations respecting the Products in the
Territory. Notwithstanding anything to the contrary herein, DYNASIG may
immediately terminate this Agreement if DELTA or any Sales Agent uses the
DYNASIG Trademarks in
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violation of this Agreement. Neither DELTA nor any Sales Agent shall market or
solicit sales for the Products under any name, sign or logo other than the
DYNASIG Trademarks. DELTA also agrees that neither during the term of this
Agreement nor at any time thereafter will it or any Sales Agent register with
any government authority or use any of DYNASIG's Trademarks or trade names or
any word, symbol or design similar or confusingly similar thereto. DELTA and
its Sales Agents shall confine the distribution of literature, brochures, and
other printed matter describing the Products to customers or potential customers
in the Territory and they will not distribute any of such items, which have not
been approved by DYNASIG. DELTA agrees for itself and each Sales Agent not to
make any representations concerning Products except as expressly authorized and
approved in advance by DYNASIG and agrees to indemnify and hold DYNASIG and its
officers, directors, and shareholders harmless from any claim by any third party
arising out of alleged representations made by DELTA, its Sales Agents or any of
its employees and other agents.
7.3 Assistance. DELTA shall promptly notify DYNASIG (i) of any claims
or objections that its or its Sales Agents' use of the Intellectual Property
Rights in connection with the marketing or sale of the Products may or will
infringe the patent, copyright, trademarks, trade names, or other proprietary
rights or another Person; (ii) of any and all infringements, imitations, illegal
use, misuse, by any Person, of the Intellectual Property Rights which come to
its or their attention. Further, DELTA shall render to DYNASIG, at DYNASIG's
expense, all reasonable assistance that DYNASIG may reasonably require in
connection with any matter pertaining to the protection of the Intellectual
Property Rights, whether in the courts, administrative agencies, or otherwise.
ARTICLE 8. - NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
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8.1 Non-Disclosure Obligations. During the term of this Agreement,
each party may disclose certain Confidential Information to the other solely to
permit the other to perform its obligations under this Agreement. Each party
shall refrain from using or exploiting any and all Confidential Information for
any purposes or activities other than those specifically authorized in this
Agreement. Each party undertakes with the other that it will keep such
Confidential Information secret during the term of this Agreement and at any
time after the expiration hereof. Each party shall implement effective security
procedures in order to avoid disclosure or misappropriate of such Confidential
Information.
8.2 Ownership of Materials. All files, lists, records, documents,
drawings and specifications which incorporate or refer to all or a portion of
the Confidential Information shall remain the sole property of the party who's
Confidential Information it is. Such materials shall be promptly returned (i)
upon the owning party's reasonable request, or (ii) in accordance to Article
10.2 of this Agreement upon termination of this Agreement, whichever is earlier.
ARTICLE 9. - TERM AND TERMINATION
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9.1 Terms and Renewal. This Agreement shall commence on the Effective
Date and shall continue for a period of twelve months from the Effective Date,
unless terminated as provided under this Agreement. At the end of the fixed
term, this Agreement shall be automatically renewed on the same terms and
conditions for an additional twelve month period unless earlier terminated under
the provisions hereof.
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9.2 Termination. In addition to any other rights of termination
herein, this Agreement may be terminated:
a) at any time by mutual consent
b) Upon notice by either party in the event of breach of this
Agreement by the other party which remains uncured for 15 days after
written notice of breach is given to the breaching party.
c) by either party without notice if any proceedings in bankruptcy, a
reorganization or arrangement, the appointment of a trustee or any other
proceedings for the relief of creditors shall be instituted by or against
the other or the other shall make an assignment for the benefit of
creditors.
d) by either party upon 30 days written notice. DELTA shall be
entitled to receive Commissions (including Commission Warrants) on written
orders actually received by DYNASIG within 90 days of termination, which
were direct result of DELTA sales activities or leads. Such Commissions
will be paid only after payment on such orders is actually received and in
accordance with this Agreement.
ARTICLE 10. - RIGHTS AND OBLIGATIONS UPON TERMINATION
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10.1 Cessation of Rights. Upon non-renewal or termination
(collectively, "Termination") of this Agreement for any reason whatsoever, all
rights and obligations of the parties hereunder shall cease, except as provided
in Articles 10, 11.4 and 12 of this Agreement; provided, however, that
Termination of this Agreement shall not relieve the parties hereto of any
obligations accrued prior to said Termination.
10.2 Return of Products and Sales Materials. Upon Termination, DELTA
shall promptly return to DYNASIG all Confidential Information in written,
recorded or other tangible form in DELTA's possession, which was supplied by
DYNASIG to assist or promote the sale of the Products. DYNASIG shall promptly
return to DELTA all Confidential Information in written recorded or other
tangible form in DYNASIG's possession, which was supplied by DELTA to DYNASIG.
In addition, DYNASIG shall have the right to purchase all of DELTA's sales
materials (if any) related to the Products at DELTA's cost for such materials
(excluding freight and handling).
10.3 Survival of Non-Disclosure Obligation. Notwithstanding the
Termination of this Agreement, each party shall continue to abide by the terms
of its non-disclosure obligations with respect to Confidential Information under
Article 8 of this Agreement.
10.4 Remedies. In the event of a breach of this Agreement or any term
hereof by either party, the other shall have all rights and remedies available
at law, in equity, or under the terms of this Agreement, including, without
limitation, the right to seek injunctive relief and specific performance of any
party's obligations hereunder. All rights and remedies of any party hereto
shall be cumulative and the exercise of any right or remedy by any party shall
not be deemed a waiver, relinquishment or abandonment of any other right or
remedy, and shall not
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affect or limit in any way the future assertion of the same, or any other right
or remedy, except to the extent otherwise expressly provided in this Agreement.
ARTICLE 11. - COMPLIANCE AND APPLICABLE LAWS
--------------------------------------------
11.1 Application of U.S. Laws. In the performance of its obligations
under this Agreement each party shall, at all times, strictly comply with all
laws, regulations and orders of the United States, including but not limited to
the Foreign Corrupt Practices Act, 15 U.S.C.A. Section 78dd-1, et seq.
11.2 Authorizations. DELTA shall, at its own expense, make, obtain,
and maintain in force at all times during the term of this Agreement, all
filings, registrations, reports, licenses, permits and authorizations
(collectively "Authorizations") required under applicable law, regulation or
order in order for DELTA to perform its obligations under this Agreement.
DYNASIG shall provide DELTA with such reasonable assistance as DELTA may request
in making or obtaining any such Authorizations.
11.3 Compliance With Local Law. Each party hereby represents and
agrees that neither it nor any person or firm connected with it has participated
or will participate in any action in violation of any law, regulation, decree,
order, policy or other directive of the lawful government.
11.4 Indemnification. Each party hereby indemnifies and agrees to pay,
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defend, and hold harmless the other, its affiliated entities, and each of their
respective officers, directors, shareholders, members, managers, partners,
employees, agents from and against any loss, liability, cost, claim, demand,
penalty, order, judgment, or expense arising out of or relating in any manner to
its failure to comply with any provision of this Agreement or any laws,
regulations or orders of any lawful government of the Territory or of the United
States including but not limited to the Foreign Corrupt Practices Act, 15
U.S.C.A. Sec. 78dd 1, et seq.
ARTICLE 12. - GENERAL PROVISIONS
--------------------------------
12.1 Entire Agreement and Amendments. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersede all prior agreements between the parties, whether written or oral,
relating to the same subject matter. No modification, amendments or supplements
to this Agreement shall be effective for any purpose unless in writing, signed
by each party, approvals or consents hereunder of a party shall also be in
writing.
12.2 Force Majeure. Neither party shall be liable to the other party
for any delay or omission in the performance of any obligation under this
Agreement, other than the obligation to pay monies, where the delay or omission
is due to any cause or condition beyond the reasonable control of the party
obliged to perform, including, but not limited to, strikes or other labor
difficulties, acts of God, earthquakes, acts of government (in particular with
respect to the refusal to issue necessary import or export licenses), war,
riots, embargoes, or inability to obtain supplies ("Force Majeure"). If Force
Majeure prevents or delays the performance by a party of any obligation under
this Agreement, then the party claiming Force Majeure shall promptly notify the
other party thereof in writing.
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12.3 Notices. All notices required or permitted by this Agreement
shall be in writing and in English and shall be effective when delivered
personally or five (5) days after sent by U.S. Mail, commercial courier, or air
mail, return receipt requested with proper postage, addressed as set forth
above.
12.4 Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws effective
during the term of this Agreement, the legality, validity and enforceability of
the remaining provisions of this Agreement shall not be affected thereby.
12.5 Binding Nature of Agreement; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and permitted assigns.
12.6 Incorporation of Exhibits. All Exhibits attached to this
Agreement are incorporated herein by reference and are made part of the
covenants of this Agreement whether or not the Exhibits are executed by any or
all of the parties.
12.7 Incorporation of Recitals. The prefatory language and Recitals
made and stated above are hereby incorporated by reference into, and made a part
of, this Agreement.
12.8 No Other Parties to Benefit. This Agreement is made for the sole
benefit of the parties hereto and their successors and permitted assigns.
Except as expressly provided herein, no other person or entity is intended to or
shall have any rights or benefits hereunder, whether as third-party
beneficiaries or otherwise.
12.9 Arbitration. Any controversy or claim arising out of or relating
to this Agreement shall be settled by arbitration in Tempe, Arizona in
accordance with the rules, then obtaining, of the American Arbitration
Association, and judgment upon the award rendered may be entered in any court
having jurisdiction.
12.10 Governing Law and Venue. The substantive laws of the United
States and the State of Arizona shall govern the interpretation and enforcement
of this Agreement. Any disputes shall be heard by courts of competent
jurisdiction located in Maricopa County, Arizona. Any agreements between DELTA
and its Sales Agents shall have similar provisions as to law and venue.
12.11 Modification and Waiver. No provision of this Agreement shall be
amended, waived or modified except by an instrument in writing signed by the
parties hereto.
12.12 Materiality. All covenants, agreements, representations and
warranties made herein shall be deemed to be material and to have been relied on
by the parties in entering into this Agreement and shall survive the execution
and delivery of this Agreement.
12.13 Integration; Time of the Essence. This Agreement constitutes and
embodies the full and complete understanding and agreement of the parties hereto
and supersedes all prior understandings, whether oral or written. Time is of
the essence in all matters associated with this
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Agreement. No representation, promise, inducement or statement of intention has
been made by any party hereto which is not embodied in this Agreement, and no
party hereto shall be bound by or liable for any alleged misrepresentation,
promise, inducement or statement of intention not so set forth.
12.14 Authority. By execution of this Agreement, the signatories
hereto represent and warrant their authority to act in the capacity stated. By
execution of this Agreement each party represents and warrants its right, power
and authority to enter into and to perform its obligations under this Agreement.
The parties have signed this Agreement effective on the date first set
forth above.
"DYNASIG"
DYNASIG CORPORATION,
By: /s/ Richard C. Kim
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Richard Kim
President
Date: May 4, 2006
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"DELTA"
DELTA RESOURCES, LLC
By: /s/ James L. Thomas
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James L. Thomas
President
Date: May 4, 2006
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