**Exhibit 10.13**

 

**MASTER DISTRIBUTOR AGREEMENT**

 

THIS MASTER DISTRIBUTOR AGREEMENT (hereinafter the“Agreement”), is made this 21 first day of November 2008 (“EffectiveDate”), by and between “Who’s Your, Daddy. Inc., a Nevada corporation having its principal placeof business located at 5840 EI Camino Real, Suite 108, Carlsbad, CA 92808(“WYD”), and Bervt Promotion, LLC, a Nevada limitedliability company having its principal place of business located at                                                                                                                         (“Distributor”). WYD is the producer and seller of certain productsdescribed in Exhibit A the (“Products”). Upon the terms andconditions set forth herein, Distributor desires to be appointed as adistributor for the Products and WYD desires to appoint Distributor as adistributor. Accordingly, in consideration of the foregoing and the mutualcovenants and undertakings set forth herein, the parties hereby agree asfollows:

 

**1.****                                     ****SCOPE OF APPOINTMENT.**

 

A.                                  WYD hereby appointsDistributor as its exclusive distributor, with the right to sub-distribute uponsubstantially similar terms and conditions hereof and such other terms andconditions as Distributor reasonablydetermines, for the sale of the Products in the territory listed in ExhibitB (the “Territory”). The Distributor will notify WYD of any sub-distributorappointed within seven (7) days.

 

B.                                    In order to helpensure the Products are distributed properly throughout the entire Territory, and that Distributordevotes its diligent efforts to the Products and to the support of itscustomers within the Territory, Distributor shall refrain from engaging inactively soliciting customers located outside the Territory with respect to theProducts during the term of this Agreement, unless otherwise authorized by WYD inwriting. If Distributor is found to have violated this provision, it is subjectto termination for cause under Section 4 (C). If Distributor has cause tobelieve Product is being transshipped and sold to customers in Distributor’sTerritory other than under the provisions of Section 1 (A), Distributor shall notify WYD promptly andDistributor and WYD will make its best efforts, including the use of all available legal remedies, to determine thesource of the transshipping and cause it to cease. Except as hereinafterprovided, if any of the above restrictions is unlawful under applicable laws orregulations, such restriction(s) shall be considered of no force or effect.

 

C.                                    Distributor agreesto use its commercially reasonable efforts to diligently and faithfully develop a demand for the Productsand to solicit purchases thereof so as to maintain a reasonable volume of salesof the Products.

 

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Distributor further agreesthat, at all times hereunder, it will maintain adequate working capital,facilities and personnel to accomplish this purpose.

 

D.                                   During the term of this Agreement, WYD shallnot appoint any other distributor for the sale of the Products within the Territory. Distributor shall not sell Products outside of the Territoryor sell to customers located within the Territory who Distributor knows willsell substantially all of the Products outside the Territory. If, from time totime, WYD introduces new beverage products in the Territory, they willfirst beoffered to Distributor. Ifmutually acceptable terms are agreed upon within a reasonable time after WYDgives Distributor notice of the new products, the new products will be added tothis Agreement on said terms.

 

The exclusive right to sellthe Products in the Territory does not apply to sales or transfers by NationalChains of the Products to or within the Territory to its stores or itsaffiliates with which the Distributor did not devote direct efforts. A “National Chain” is definedas a group of affiliated, centrally managed accounts that are reasonablydesignated by WYD for National Chain treatment. WYD will use its best effortsto arrange for the Distributor to distribute to the National Chains. If WYD isunable to reach an agreement for the Distributor to sell the Products to saidNational Chains, WYD will pay Distributor an invasion fee equal to thedifference between the per case price sold by WYD to the National Chain andthen current per case price for the Products to the Distributor, less shippingand slotting fees actually paid by WYD, onall sales to said Chains.For example, if WYD sells a caseof Products to a National Chain for $22, andpays $1 per case shipping and slotting fees, and theDistributor’s then current wholesale price for the Products is $18, WYD willpay the Distributor an invasion fee equal to $3 per case sold to the NationalChain.

 

For disclosure purposes, WYDis advising the Distributor that it has an agreement in place, for marketing purposes, for vending machines, office coffee services and mobilecatering distributors (includes schools) in certain territories.

 

E.                                     Distributor hereby accepts its appointmenthereunder.

 

**2.****                                      PRICESAND PAYMENT TERMS.**

 

A.                                  The Distributor agrees to the prices andpayment terms as provided in ExhibitC.

 

B.                                    Distributor shall notify WYD in writing ofdisputed charges within seven (7) business days of receiving the invoice containing the disputed charge*.*Distributor shall provide documentationreasonably requested by WYD toresolve the dispute. Distributor and WYD shall exercise reasonable, good faith efforts to resolve the disputed charges. Failure to contest a charge within thirty (30) days of the date ofthe Distributor’s receipt of an invoice

 

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shall create an irrefutablepresumption of the correctness of the charge, absent manifest error. If Distributor and WYD fail to resolvethe disputed charge withinthirty (30) days from the date of the Distributor’s receipt of an invoice, thedisputed charge shall be subject to the dispute resolution procedures set forthin Section 15 of this Agreement.

 

C.                                    Payment may be made by cash, credit card,money order, Automatic Clearing House (ACH) or Cashier’s check or companychecks made out to WYD.

 

**3.****                                  ****OBLIGATIONS**

 

**A.****                                   ****Distributor shall:**

 

(i)                                    use reasonable commercial efforts to sell theProducts throughout the entire Territory;

 

(ii)                                 maintain an adequate and knowledgeableoutside sales force (Exhibit F);

 

(iii)                              maintain such warehousing facilities asDistributor may reasonably determine;

 

(iv)                             refrain from any unfair trade practices orany other activities detrimental to WYD’s goodwill or reputation and shall follow the guidelines outlined in WYD’s “Code of Conduct”published on its website athttp://whosyourdaddyinc.com/indexcoc.htm?pageid=codeofConduct;

 

(v)                                disseminate to its customers any promotionalmaterials supplied free of charge by WYD from time to time;

 

(vi)                             furnish WYD with marketing information,monthly depletion reports and other, sales information and statistics asreasonably requested by WYD from time to time;

 

(vii)                          comply with all applicable laws andregulations and adhere to all standards and quality control policies reasonablyestablished by WYD with regard to any of its dealings with the Products; and

 

(viii)                       provide WYD with the documentation requiredin Exhibit D prior to receiving any orders.

 

**B.****                                   ****WYD shall:**

 

(i)                                    refer all inquiries to sell the Products fromlocations in the Territory, other than National Chains, to which theDistributor does not have a direct relationship. If the Distributor is unableto reach an agreement to sell the Products to said location, WYD reserves theright to negotiate directly with said location;

 

(ii)                                 provide, during the Term and at no cost tothe Distributor, POS and other promotional materials to be mutually agreedupon.

 

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Distributorwill provide WYD with a schedule of its planned promotional parties;

 

(iii)                              meet regularly withthe Distributor to discuss the sales of the Products, provide support whitlocal marketing initiatives, demo programs, review customer lists, salespriorities and forecasts;

 

(iv)                             maintain accurate financial records on the Products sold toDistributor;

 

(v)                                except as otherwise provided herein, supplythe Distributor such quantities of the Products as shall be required by theDistributor to perform the conditions of this Agreement, and the same shall beshipped on order from the Distributor consistent with provisions of thisAgreement;

 

(vi)                             Products shall be manufactured and, labeledin accordance with all applicable federal, state and local laws andregulations, including but not limited to the U.S. Food, Drug and Cosmetic Act,the Occupational Safety and Health Act, and all associated regulations;

 

(vii)                          replace, at its own expense, all Productswhich are spoiled or otherwise deficient in quality or physically damaged priorto shipment;

 

(viii)                       obtain and maintain, and will continue tomaintain at all times during the Term, at its own expense, comprehensivegeneral liability insurance and product liability insurance in an amount notless than $1 million per occurrence in respect of bodily injury and $1 millionper occurrence in respect of property damage. Company will provide certificates of insurance evidencing suchcoverage to Distributor upon request.

 

**4.****                                     ****TERM AND TERMINATION**

 

A.                                  This Agreementshall remain in effect unless terminated pursuant to the terms of thisSection 4. If this Agreement is terminated, each party acknowledges thatit will take appropriate actions to adjust its business operations inanticipation of termination.

 

B.                                    This appointment of Distributor shall be forthe term and conditions described in Exhibit E (the “Term”).

 

C.                                    Either Distributor or WYD may terminate thisAgreement for cause, at any time during the Term. “Cause” for termination shallinclude, but not be limited to, the following:

 

(i)                                    Cause shall existfor termination by either party if the other party breaches any provision ofthis Agreement, and fails to cure, if curable, suchbreach within thirty (30) days after receipt of writtennotice from the other patty specifying the nature of the breach. In such event,the termination shall be deemed effective at midnight upon the expiration ofthe 30th day after the breaching party’s receipt of such notice.

 

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(ii)                                 If any representation or warranty made byeither Party herein is materially false or misleading when delivered.

 

(iv)                             Either party takes any action that negativelyaffects the goodwill or reputation of the other.

 

(iv)                             Cause shall exist for termination by eitherparty immediately upon written notice to the other party, if such other partyliquidates or terminates its business, becomes insolvent, is adjudicated abankrupt, makes an assignment for the benefit of creditors, invokes theprovisions of any law for the relief of debtors, or files or has filed againstit any similar proceeding.

 

D.                                   Cause shall exist for termination by WYD:

 

(i)                                    if Distributor fails to make payments duepursuant to this Agreement; or

 

(ii)                                 if Distributor is convicted of committing afelony or engaging in fraudulent activity with respect to its dealings with WYD or if any license or permit necessary for Distributor to distribute theProducts is reduced or suspended for more than 15 continuous days.

 

E.                                     Upon an event of default or violation of thisAgreement, WYD may:

 

(i)                                    Suspend or terminate all or any portion ofdeliveries remaining;

 

(ii)                                 Accelerate all amounts due and outstandingfrom Distributor;

 

(iii)                              Pursue an action at law to enforce theprovisions of this Agreement;

 

(iii)                              Recover attorney fees, costs of court,consequential and special damages if an action at law is instituted:, or

 

(iv)                             Pursue any other action, in law or equity, in which it deems proper.

 

F.                                     Notwithstanding the above, upon anyexpiration or termination of this Agreement, any orders outstanding andunshipped as of the expiration or termination date shall be deemed canceled,and WYD shall have no obligation to fill the same. WYD shall have the right toreject all or part of any orders received from Distributor during the periodafter any notice of termination but prior to the effective date of thetermination, if availability of the Products is insufficient at that time tomeet the needs of WYD and its customers fully.

 

G.                                    Notwithstanding the provisions ofsubparagraph D, the termination of this Agreement shall not relieve Distributorfrom its obligation to satisfy any outstanding indebtedness to WYD, from itsindemnification obligations pursuant to Section 8, or from any ofDistributors other obligations hereunder, with respect to any WYD Productsremaining in Distributor’s inventory. Distributor acknowledges that Sections 7,8 and 17 shall survive any termination of this Agreement.

 

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H.                                   Uponany termination of this Agreement, WYDmay, at its option, repurchase from Distributor any or all of the Products inDistributor’s inventory. If WYD fails to repurchase any such Products,Distributor shall have 60 days after the date of termination to sell-off anyremaining inventory of Products.

 

I.                                        Upon termination other than as provided in ExhibitC, so long as the Distributor is not then in breach of any materialobligation hereunder, WYD will pay the Distributor the. sum of three dollars ($3.00) for each case ofProducts sold at retail in the ordinary course of business (if not returned orotherwise credited) by Distributor in the twelve (12) month period immediatelypreceding the date of notice of the termination of this Agreement (“TerminationFee”); provided, however, if fewer than twelve (12) months has passed prior tothe termination, the number of cases sold shall be annualized with that resultused as the basis for calculating the Termination Fee due hereunder. Theparties acknowledge that the calculation of damages to the Distributorwould be difficult to ascertain if WYD terminates or fails to renew thisAgreement without cause and agree that the Termination Fee**represents a fair agreed upon liquidateddamages. This Termination Fee shall be payable by WYD only where WYD’stermination or failure to renew is without cause. The Distributor agrees, inconsideration for the Termination Fee, to provide WYD with a detailed list ofall accounts purchasing the Products in the Territory.

 

**5.****                                     ****ORDERS AND SHIPMENTS**

 

A.                                  Each of Distributor’s orders is subject toWYD’s acceptance. Orders must be a minimum of truckload, unless otherwiseaccepted by WYD. In addition to any specific rights of rejection set forth inthis Agreement, WYD shall have the right, in its reasonable discretion, toreject any order, in whole or in part. Orders shall be deemed accepted unlessWYD rejects any order within three (3) business days after the date of WYD’sreceipt of the purchase order.

 

B.                                    Shipping toms on all sales from WYD toDistributor shall be F.O.B. Distributor’s loading dock unless a differentdelivery address is set forth in the purchase order. WYD shall not be liable toDistributor for any damages, whether incidental, consequential, or otherwise,for failure to fill orders, delays in shipment or delivery or any error in thefilling of orders if such failure, delay or mistake is not within the controlof WYD. WYD shall assume liability for any breakage of Products from WYD toDistributor.

 

C.                                    WYD shall have the right to make partialshipments with respect to Distributor’s orders, which shipments shall be invoicedseparately and paid for when due, without regard to subsequentshipments. If WYD makes a partial shipment to Distributor which results in the shipment of less than a full truckload, WYD shall pay the costof freight. Delay in

 

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shipmentor delivery of any particular installment shall relieve Distributor of itsobligation to accept the remaining installments unless mutually agreed toadvance.

 

D.                                   Goods are deemed received by Distributor upondelivery. Until received by Distributor, all risk of loss to the above describedgoods is borne by WYD. Distributor has the right to examine the goods uponreceipt and has five (5) business days in which to notify WYD of any claimfor damages based on the condition, grade, quantity or quality of the goods.Such notice must specify in detail the particulars of the claim. Failure toprovide such notice within the requisitetime period constitutes irrevocable acceptance of the goods.

 

**6.****                                     ****WARRANTY MATTERS**

 

A.                                  WYD SPECIFICALLY DISCLAIMS ANY AND ALLWARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIEDWARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARDTO THE PRODUCT. WYD’S ENTIRE LIABILITY HEREUNDER IS EXPRESSLY LIMITED TODISTRIBUTOR’S DIRECT DAMAGES, NOT TO EXCEED AMOUNTS PAID TO WYD HEREUNDER. INNO EVENT SHALL WYD BE LIABLE FOR ANY LOST PROFITS OR ANY OTHER CONSEQUENTIAL,INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR OTHER, DAMAGES,

 

B.                                    The only express warranties made by WYD withrespect to the Products are that the goods are free from, any and all securityinterests, liens or encumbrances, Notwithstanding anything herein to thecontrary, WYD warrants that the Products shipped to Distributor are pure,wholesome and of uniform quality, are fit for, human consumption and meet allrequirements of the applicable federal, state and local law and regulations,including those promulgated under the Federal Food, Drug and Cosmetic Act.

 

C.                                    If WYD recalls any Product, WYD will, withinfifteen (15) days of WYD’s recall notice, at WYD’s**expense, pick-up any unsold or returnedProduct inventory from Distributor and credit Distributor’s account for thecost of such Product, including costs of freight and any applicable taxes.

 

**7.****                                ****TRADEMARKS /****PROPRIETARY INFORMATION**

 

A.                                  Distributor acknowledges the exclusiveownership by WYD of all trademarks, trade names, logos, service marks, tradedress, designs and copyrighted materials utilized by WYD worldwide in connectionwith the Products (collectively referred to as “Marks”). Distributor shall beprivileged to utilize Marks only in connection with Distributor’s sales andadvertising of the Products. Such utilization shall be in accordance withstandards and requirements established by WYD from time to time, in WYD’s sole discretion.  As used**herein, the term “Marks” shall include allmarks, names, slogans, labels, logos,service marks, trade dress, designs

 

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andcopyrighted materials used by WYD, regardless of whether such items areregistered by WYD.

 

B.                                    Distributor shall refrain from removing,altering or obliterating any Marks from the Products. Distributor shall refrainfrom advertising or selling the Products under any trademarks or trade names inaddition to Marks or from repackaging or relabelling the Products, withoutWYD’s prior written authorization. In any instance in which Distributorutilizes Marks in advertising or other promotional materials, such materialsshall indicate prominently that Marks are owned by WYD. Distributor shallrefrain from utilizing any Marks on any Products other than WYD’s Products.Distributor will not otherwise use or register (or make any filing with respectto) any of the Marks anywhere in the world. Distributor willnot contest anywhere in the world the use by WYD or use authorized by WYD ofthe Marks or application or registration therefore, whether during or after theterm of this Agreement Distributor acknowledges and agrees that Distributor hasno interest in or right to the Marks. Distributor further acknowledges andagrees that all of its use of the Marks shall inure to the**benefit of WYD.

 

C.                                    Upon any termination of this Agreement,Distributor shall discontinue all use of Marks, except in connection withDistributor’s sales of any remaining inventory, and shall make no claim to anyMarks or against the****use thereof by WYD or others. It is intended by the parties that Distributor shall acquire no rights in Marks, with theexception of the privileges granted herein. However, if any such rights ariseby operation of law, Distributor shall assign it to WYD (or its designees) atno charge.

 

D.                                   If Distributor becomes aware of any infringements or potentialinfringements of Marks, Distributor shall notify WYD promptly thereof, WYD, atits option, may elect to prosecute said infringements, but the failure of WYDto do so shall not affect the validity or terms of this Agreement.

 

E.                                     To the extent not otherwise prohibitedherein, Distributor at no time shall engage in any activities that may impairin any manner the rights of WYD in and to Marks.

 

F.                                     Distributor acknowledges the Company is apublic company with securities that are publicly traded and that theProprietary Information may include “material non-public information” as suchterm is used in the federal securities laws. Distributor further acknowledgesand that it is aware that the disclosure of any “material non-publicinformation” to another person or entity who would or does conduct trades inthe Company’s securities, or Distributor’s trading in the Company’s securitieswhile aware of any “material non-public information”, could be a violation oflaw, which could subject the Distributor and persons to whom the informationwas disclosedto civil and criminal penaltiesunder the**securities laws of the United States. Accordingly, without limiting the

 

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otherterms and conditions of this Agreement, Distributor agrees that it will not,and will use its best efforts to ensure that its representatives will not:

 

(i)                                    trade or cause third parties to trade, ordisclose, divulge or reveal material nonpublic information of the Company or its affiliates to any person or persons who may trade,in the Company’s securities while Distributor or its representatives are awareof such material nonpublic information; or

 

(ii)                                 use or disclose or cause any third party to use or disclose any Proprietary Informationin any manner in violation of any securities laws or any other applicable laws.

 

G.                                    Distributor shall bind, in writing itsagents, Sales Reps and sub-distributorswho have access to Proprietary Information to all the provisions of thisSection 7 and Section 17 and will provide WYD with a copy of saiddocument upon demand.

 

**8.****                                     ****INDEMNIFICATION**

 

A.                                  Distributor agrees to indemnify and holdharmless WYD from and against any and all damages relating to, resulting fromor arising in connection with: (i) any aspect of Distributor’s businessthat does not relate to distribution of Products by Distributor orDistributor’s subcontractors, sub-distributors, employees or agents;(ii) the use of any Marks otherwise in strict accordance with the termshereof; (iii) the acts, errors, representations, misrepresentations,willful misconduct or gross negligence of Distributor, its subcontractors,sub-distributors, employees, or agents; (iv) the gross negligence orwillful misconduct of Distributor or any claim based upon a breach byDistributor of its representations, warranties or obligations set forth herein.

 

B.                                    WYD agrees to indemnify and hold harmlessDistributor from and against any and all damages relating to (i) anyaspect of WYD’s business except the distribution of Products by Distributor orDistributor’s subcontractors, sub-distributors, employees or agents;(ii) the use of any Marks otherwise in strict accordance with the termshereof; (iii) the gross negligence or willful misconduct of WYD; or(iv) any claim based upon a breach by WYD of its representations, warrantiesor obligations set forth herein.

 

C.*                                   *In no event shall one Party be liable,whether in contract or in tort, to the other Party, its Affiliates or any thirdparty, including End Users, for loss of profit, loss of revenue, loss ofbusiness, indirect, special, consequential or punitive damages arising directlyor indirectly from the negligence of the other Party or its respective parent,subsidiary or Affiliate or its contractors, representatives, employees or agents, or any breachof a Party’s obligations hereunder or from the use of or in connection with the

 

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saleof the Product, whether or not that Party had either actual or constructiveknowledge that such damages might be incurred.

 

**9.             INSURANCE**

 

A.                                   WYD agrees to maintain at all times, ProductsLiability/General Liability Insurance evidencing minimum insurance coverage inthe amount of not less than $2,000,000 per occurrence. This insurance may notbe terminated or materially modified except upon at least thirty (30) daysprior written notice by the insurance carrier to the Distributor.

 

B.                                     Distributor agrees to maintain at all times,General Liability Insurance evidencing minimum insurance, coverage in theamount of not less than $2,000,000 per occurrence. This insurance may not beterminated or materially modified except upon at least thirty (30) days priorwritten notice by the insurance carrier to WYD.

 

**10.          RELATIONSHIP OF TH****E****PARTIES**

 

Therelationship between WYD andDistributor is that of vendorand vendee only. Nothing stated in this Agreement shall be construed ascreating the relationships of employer and employee, franchiser and franchisee,master and servant, principal and agent, partnership or joint venture betweenthe parties. Distributor shall be deemed an independent contractor at alltimes, and neither Distributor nor any of Distributor’s employees or agentsshall have any express or implied right or authority to assume or create any obligations on behalf of WYD.

 

**11.****                              ****FORCE MAJEURE AND DAMAGEEXCLUSIONS**

 

Apartfrom any specificprovisions in this Agreement excusing either party’s performance or limitingits liability, either party shall be excused from any failure or delay inperformance (with the exception of any failure or delay by Distributor inmaking payments to WYD) resulting directly or indirectly from Productshortages, inability to obtain raw materials from usual sources of supply,transit failure or delay, labor problems or disputes, governmental orders orrestrictions, fire, flood, or other acts of nature, accident, war, civildisturbances, or any other cause(s) beyond such party’s reasonable control.

 

**12.          ASSIGNMENT**

 

Otherthan Distributor’s right to enter into sub-distributorships as provided herein,Distributor may not assign, transfer or sell all or any of its rightsunder this Agreement (or delegate allor any of its obligations hereunder),including any transfer of more than a 50% ownership interest (other than to aprincipal, subsidiary or affiliate of Distributor), without the prior writtenconsent of WYD, which consent will not be unreasonably withheld. Any suchsub-distributorship shall be subject to the terms and conditions of thisAgreement and in no event shall survive the termination or expiration of thisAgreement.

 

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**13.          WAIVER**

 

Thewaiver by either party of any breach of this Agreement by the other party in aparticular instance shall not operate as a waiver of subsequent breaches of thesame or different kind. The failure of either party to exercise any rights underthis Agreement in a particular instance shall not operate as a waiver of saidparty’s right to exercise the same or different rights in subsequent instances.All waivers must be in writing.

 

**14.          SEVERABILITY**

 

Theinvalidity or unenforceability of any provision of this Agreement shall notaffect the remaining provisions.

 

**15.          GOVERNING LAW AND MEDIATION**

 

ThisAgreement shall be governed by and construed under the laws of the State ofCalifornia. In the event of a dispute between the parties, the parties elect touse mediation through the JAMS (Judicial Arbitration & MediationServices) forum, with San Diego, CA as the designated location for anyhearings, and only after exhausting that remedy will the parties then use thecourt system**for assistance in resolving any dispute asfollows: Except as provided herein, no civil action with respect to anydispute, claim or controversy arising out of or relating to this Agreement maybe commenced until the matter has been submitted to JAMS for mediation. Eitherparty may commence mediation by providing to JAMS and to the other party a writtenrequest for mediation, setting forth the subject of the dispute and the reliefrequested. The parties will cooperate with JAMS and with one another inselecting a mediator from a JAMS panel of neutrals, and in scheduling themediation proceedings. The parties covenant that they will participate in themediation in good faith, and that they will share equally in its costs. Alloffers, promises, conduct and statements, whether oral or written, made in thecourse of the mediation by any of the parties, their agents, employees, expertsand attorneys, and by the mediator and any JAMS employees, are confidential,privileged and inadmissible for any purpose, including impeachment, in anylitigation or other proceeding involving the parties, provided that evidencethat is otherwise admissible or discoverable shall not be rendered inadmissibleor non-discoverable as a result of its use in the mediation. Eitherparty may seek equitable relief prior to the mediation to preserve the statusquo pending the completion of that process. Except for such an action to obtainequitable relief, neither partymay commence a civil action withrespect to the matters submitted to mediation until afterthe completion of the initial mediation session, or forty five (45) days afterthe date of filing the written request for mediation, whichever occurs first.Mediation may continue after the commencement of a civil action, if theparties so desire. The provisions of this Clause may be enforced by any Courtof competent jurisdiction, and the party seeking enforcementshall be entitled to an award of all costs, fees and expenses, includingattorneys’ fees, to be paid by the party against whom enforcement is ordered.The mediator or Judge may, in the Award, allocate all or part of the costs ofthe mediation or litigation, including the fees of the mediator and thereasonable attorneys’ fees of the prevailing party.

 

**16.          ENTIRE AGREEMENT/AMENDMENT**

 

ThisAgreement and any Acknowledgment provide by WYD to Distributor in connectionwith any order for the Products contain the entireagreement and understanding between the parties

 

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withrespect to the subject matter hereof, supersedes all prior or contemporaneouswritten or oral agreements concerning such subject matter and may not beamended, supplemented or otherwise changed, except by a document signed by bothparties hereto. Each party to the Agreement acknowledges that no written ororal representations, inducements or promises have been made which are notembodied herein or in such Acknowledgment. IT IS THE INTENTION ANDDESIRE OF THE PARTIES THAT THE EXPRESS PROVISIONS OF THIS AGREEMENT NOT BESUBJECT TO VARIATION BY IMPLIED COVENANTS OF ANY KIND.

 

**17.          CONFIDENTIALITY**

 

BothDistributor and WYD recognize and acknowledge that in connection with thetransactions contemplated herein, they may have access to certain confidentialinformation that is valuable, special and a unique asset of the other Party.Each Party agrees that it will not disclose such confidential information toany person, firm, corporation, association or other entity for any purpose orreason whatsoever, unless (i) such information becomes available to or knownby the public generally through no fault of such Party, (ii) disclosure isrequired by law or the order of any governmental authority, provided that priorto disclosing any information pursuant to this clause (ii) the Party fromwhom disclosure is sought shall, if possible, give prior written notice thereofto the Party whose information is to be disclosed and give that Party theopportunity to contest such disclosure. In the event of a breach or threatenedbreach by either Party of the provisions of this Section, the offended Partyshall be entitled to an injunction restraining the breaching Party fromdisclosing, in whole or in part, such confidential information. Nothing hereinshall be construed as prohibiting the offended Party from pursuing any otheravailable remedy for such breach or threatened breach, including the recoveryof damages. The obligations of the Parties under this Section shallsurvive the termination of this Agreement.

 

**18.****                              ****DISTRIBUTOR REPRESENTATIONS AND**********WARRANTIES**

 

Distributor represents and warrants to WYD that:

 

A.                                   Distributor is duly licensed by allappropriate governmental agencies so as to permit the lawful sale of theProducts and to act as a distributor in the Territory. Distributor has allcorporate authority necessary to enter into this Agreement, and the individualsigning this Agreement is authorized to bind the Distributor;

 

B.                                     The information provided by Distributor to WYD regarding the Distributor is in all respects trueand complete; and

 

C.                                     Distributor is entering into this Agreementbased on Distributor’s own independentinvestigation and is not entering into this Agreement based on anyrepresentations made by WYD concerning Distributor’s future profitability orsales levels under this Agreement or with respect to the Products. Distributoracknowledges that WYD has not required Distributor to pay any franchise fee ormake any other payment in connection with this Agreement other than the actualcost of goods and services provided by WYD under this Agreement.

 

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WYDrepresents and warrants to Distributor that:

 

A.                                   WYD is duly licensed by all appropriategovernmental agencies so as to permit the lawful manufacture, distribution,marketing and sale of theProducts. WYD has all corporateauthority necessary to enter into this Agreement, and the individual signingthis Agreement is authorized to bind WYD;

 

B.                                     The information provided by WYD toDistribution regarding the Productsis in all respects true, correctand complete and any intellectual property contained therein is owned orvalidly licensed to WYD; and

 

C.                                     WYD is entering into this Agreement based onWYD’s own independent investigation and is not entering into this Agreementbased on any representations made by the Distributor concerning theDistributor’s sales levels under this Agreement or with respect to theProducts.

 

**19.              COUNTERPARTS**

 

ThisAgreement may be executed in counterparts, each of which shall be considered anoriginal, and all of which, when taken together, will be deemed to constituteone and the same instrument.

 

**20.              LANGUAGESEVERABILITY**

 

Theunenforceability or invalidity of any provision of this Agreementshall not affect the enforceability or validity of any other provision of thisAgreement.

 

**21.              NOTICES**

 

All notices and demands of any kind which WYD or Distributor may be required or desire to serve upon the other under the terms of thisAgreement shall be in writing and shall be served by courier or byfacsimile with machine confirmation (with a separate copy sent by courier) atthe addresses and facsimile number set forth below or at suchother addresses or facsimile numbers as are designated hereafter by noticeserved as herein provided. If notice is sent by facsimile, service shall be deemed complete the day after transmission has been confirmed by machine as received.

 

Ifto WYD, to:

 

Who’sYour Daddy, Inc.

5840 El Camino Real, Suite 108

Carlsbad,CA 92008

Attn.:Michael R. Dunn, CEO

 

Fax:(760) 438-5490

 

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Ifto Distributor, to:

 
|   | Beryt  Promotion, LLC  |           |
|--------|------------------------|----------------|
|   | 3494 E. Sunset Road,   |           |
|   | Las Vegas Nevada 89120 |           |
|   | Attn:                  | Ramon Desage   |   |
|   | Fax:                   | (702) 436 5276 |   |

 

INWITNESS WHEREOF, the parties have entered into this Agreement effective as ofthe Effective Date.

 
|   | **WYD:**         | ** ** | **WHO’S YOUR DADDY, INC.** |
|--------|------------------|------------|---------------------------------|
|   | ** **       | ** ** |                            |
|   |             |       | /s/ Michael R. Dunn             |
|   |             |       | By: Michael R. Dunn, CEO        |
|   |             |       |                            |
|   |             |       |                            |
|   | **DISTRIBUTOR:** | ** ** | **BERYT  PROMOTION, LLC**       |
|   |             |       |                            |
|   |             |       |                            |
|   | Signature:       |       | /s/ Ramon A. Desage             |
|   |             |       | By: Ramon A. Desage, CEO        |

 

14

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EXHIBIT A

PRODUCTS

 
| “King  of Energy” Drinks |   | Who’s  Your Daddy Energy Drink |
|------------------------------------|--------|-------------------------------------|

 

EXHIBIT B

 

TERRITORY

 

Throughoutany and all properties, events or venues, anywhere in the world, wheregambling/gaming is conducted.

 

EXHIBIT C

 

PRICES AND PAYMENT TERMS

 

The Distributor agrees to an invoice price of $16.80 for the initialorder per case of 24

 

A                                      Payment Terms are Net 10 (After 2nd order). First Order shall beCOD.

 

B                                        WYD will pay for shipping for full truckloadsof 1,600 cases for the first six months. At all times, Distributor will pay forshipping for partial truckloads.

 

C                                        If WYD terminates this agreement due to achange of its ownership in excess of 51%, or it signs a national distributionagreement, the Distributor will be entitled to a termination payment equal to$3.00 per case times the number of cases purchased over the twelve months priorto the date of termination; provided, however, if fewer than twelve months haspassed prior to the termination, the number of cases sold shall be annualized.

 

D                                       WYD may increase the price per case toreflect the increase in price of ingredients, upon 45 days prior written noticeto Distributor.

 

EXHIBIT D

 

DOCUMENTATION REQUIRED FROM DISTRIBUTOR

 

·                                          A resale certificate, sales tax permit, orsuch other or similardocumentation in such form and substance as required by applicable law.

 

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EXHIBIT E

 

TERM

 

ThisAgreement shall commence on the Effective Date, be for a term of one(1) year (the “Term” of the Agreement) and be automatically renewed forsuccessive one (1) year terms (the “Renewal Term”) unless either of theparties hereto gives to the other party written notice of its election toterminate this Agreement at least**thirty(30) days prior to the expiration of the then-current term. For purposes ofthis Agreement, a year shall mean a period of 365 days beginning on theEffective Date or each annual anniversary thereafter, as applicable.

 

EXHIBIT F

 

OUTSIDE SALES FORCE

 

Distributor’sSales Force will perform the following, at a minimum,functions:

 

**Account Management**

 

On-GoingSales

Customer Communication 

 

**Account Management**

 

ResetProduct

InventoryManagement

 

**Account Service**

 

NewAccounts for Distributor 

On-SiteMarketing Presence 

NewAccount Prospects

 

EXHIBIT G

 

ADDITIONAL CONSIDERATION

 

Uponexecution of this Agreement, WYD will issue to Distributor 100,000 shares ofWYD’s common 144 stock.

 

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WYDWill provide at its own cost and expense, a vehicle “wrap” or other van decalsas requested by, and as reasonably acceptable to the Distributor. The cost of installation of such “wrap” or van decals shall be borne bythe Distributor.

 

17

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