Master Representative &  Consulting Agreement


 


This
Master Representative and
Consulting Agreement ("Agreement")
is entered into as
of the 23rd
Day of May,
2013 (hereinafter "Agreement Date")
between KMH Associates, Inc. a New York
Corporation, with its principal place of business at
BOX 1195, Smithtown, NY 11787-0959 (the "Master Rep") and Nyxio Technologies
Corp, an Oregon Company with its principal place of business at 2156 Northeast
Broadway, Portland, OR 97232 (the "Vendor").


 


General


 


Whereas
the Master Rep
is engaged in
the business of
providing operational, promotional, marketing,
and selling services for various
businesses; and sales and marketing management consulting services.


 


Whereas
the Vendor desires
to retain the
Master Rep to
obtain and manage individuals and
business entities to
manage, promote, market
and sell the
Vendor's products/services in the United States.


 


In
consideration for the mutual
promises, covenants, and
Agreements made below, the
parties, intending to be
legally bound, agree
as follows:


 


Agreement


 


1.                  
Right to
Solicit. The
Vendor  grants to
the Master Rep
the right to
solicit individuals and other business
entities (hereinafter referred to as
the "Sub Rep") to provide the Vendor
with certain logistical support, promotional, selling services for
the Vendor's products/services, and manage said entities in the United States.
Individual Sub Territories are defined as
the designated geography serviced by the Sub Rep. Territory is defined
as the Continental United States.


 


2.                  
Trademarks and Trade
Names.  Vendor
reserves all rights
to the trade
names and trademarks and
to any other commercial
symbols that it may adopt or
use from time to-time.


 


3.                  
Independent Contractor.
The Master Rep
is not an
employee of the
Vendor for any purpose
whatsoever, but is an independent
contractor. The Vendor is interested only in the results obtained
by the Master Rep, who shall have sole control of the manner and means of performing
under this Agreement provided said performance is conducted in an ethical and legal
manner. The Vendor shall not have the right
to require the Master Rep to do anything that would
jeopardize the relationship of independent contractor between the Vendor and the Master Rep.
All expenses and disbursements incurred
by the Master Rep in connection with this
Agreement shall be born wholly and completely by the Master Rep. The
Vendor may from time to time choose to reimburse
the Master Rep for specific expenses when appropriate and Agreed by
both parties. The Master Rep does
not have, nor shall the
Master Rep present itself as having
any right, power or authority
to create any contract or obligation, either express
or implied, on behalf of, or binding upon the Vendor, unless the
Master Rep receives prior written
consent from the Vendor. The Master Rep shall have the right to appoint, and shall be solely responsible for the Master Rep's
own solicitation force, employees, agents
and representatives, who shall be at the
Master Rep's own
risk, expense and supervision and who shall not have any claim
against the Vendor for compensation
or reimbursement except as specified in Paragraph 4; Commission.
The Master Rep may represent other products/services
that do not compete directly or indirectly with products/services covered by
this Agreement and
may exercise the Master Rep's own discretion in
obtaining promotional, selling and
marketing services, hiring personnel and otherwise complying with
the terms of this Agreement.




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4.                  
Commission


 


4.1The
Vendor shall pay
the Master Rep
a comm1ss1on
pursuant to Exhibit
A. Vendor further
agrees that in the event the Vendor fails
to pay commissions within 60 days of the date(s) due, pursuant to the terms in Exhibit A, the Sub Rep
companies will have the right to pursue .their portion
of the commission(s) due as though they had a direct fiduciary relationship with the vendor under
the appropriate and applicable terms herein.


 


4.2Consulting
Fees - (if
any) are payable
as specified in
Exhibit A Paragraph
3.


 


5.                  
Best Efforts.
The Master Rep shall
use its best
efforts to provide
certain logistical support, promotional,
selling and marketing
services for the Vendor and
to solicit Subs to perform such services for the Vendor.


 


6.                  
Term and
Termination.


 


6.1The
term of this
Agreement shall be
two years from
the date first
written above, unless terminated
by mutual agreement as specified
below.


 


6.2This
Agreement, after nine
months from the
above Agreement Date,
may be terminated in
any Sub-Territory*, for
any reason, on sixty days
written notice, and such termination will become effective thirty days thereafter.
(Total of 90 days.) Termination of a Sub Rep in
any Sub Territory shall not sever
said Sub-Territory* from this Agreement. After not
less than twelve months,
Vendor may terminate this Agreement
in total. Said termination of this Agreement in
total shall become effective ninety days from receipt of written notice as stipulated
herein. This Agreement will renew automatically two years from the effective
date of this Agreement first written above unless terminated by either party
as stipulated herein.


 


6.3In
the event of
termination under Paragraph
6.1 or Paragraph
6.2 above, the Master
Rep shall be
entitled to commissions
for orders shipped by the Vendor
within a period sixty days from the effective termination date for
all orders accepted up to the termination
effective date.


 


6.4In
the event that
prior to the
effective termination or
expiration date, the
Vendor has accepted a purchase
order, contract or
other device used
by a customer
to purchase, guarantee a
purchase or secure terms
and conditions for future
purchases or release(s) of product,
for shipment to the
customer or designee, said purchase order,
contract or other device, and the conditions
and amounts, etc. contained
herein pertaining to commissions
and the payment of said commissions to Master Rep, shall survive the termination or expiration of this Master Representative &
Consulting Agreement.


 


Notes:
* Defined as
either the Sub
Rep's Geographic or
specified accounts




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6.5All
commission due under
Para 6.1, Para
6.2, Para
6.3 and Para
6.4 will be
paid pursuant to Exhibit A.


 


7.                  
Proprietary Information.
The  customers,  business, 
products/services, technology, business
connections, customer lists,
procedures, operations, techniques
and other aspects of
the business of
the Master Representative
and Vendor are established
at great expense and protected as confidential information and trade
secrets and provide the other with a substantial competitive
advantage of selling its products/services. The parties shall have
access to, and be entrusted with,
trade secrets, confidential information and proprietary information, and the
parties would suffer great loss and injury if the either party would disclose this information or use it to compete or
bypass the other. Consequently, the parties
agree that during its relationship with
the other, and from then on,
for a period of three (3) years, it will not,
directly or indirectly, either individually
or as an employee,
agent, partner, shareholder, or in any
other capacity, use or disclose, or
cause to be used or disclosed, any
trade secret, confidential information or proprietary information acquired by either party during its relationship with
the other.


 


8.                  
Indemnification.
Master Rep shall
indemnify and hold
Vendor harmless for
any claims, actions, losses,
damages and awards due
to Product misrepresentations by
Master Rep that exceed the Product warranties that Vendor
has stated in writing or which were
not expressly authorized by Vendor.


 


Vendor
shall indemnify and
hold Master Rep
harmless from and against
any and all
third party claims, damages
and costs incurred
by Master Rep arising exclusively
upon the claim of the infringement of any U.S. patents,
copyrights or trademarks in
the manufacture or the marketing of Vendor's products/services; provided that
Master Rep (i) has not modified Vendor's product in any way, (ii) gives Vendor full and complete authority, information and
assistance to settle and
defend such action, and (iii) promptly
notifies Vendor of the claim of infringement
or legal proceeding, Vendor may, at its expense and option, either
procure the right to continue using any part of Vendor's product, replace same with non-infringing Vendor product, or modify
such Vendor's product such that it is non- infringing.
The Master Rep shall notify Vendor in
writing, within ten (10) days of receipt
of any complaints or claims brought or threatened against Master Rep
with respect to Vendor's proprietary
rights.


 


9.                  
General Provisions


 


9.1Assignment.
Except as set
forth in this
section, neither this
Agreement nor any rights
under this Agreement,
in whole or in part, shall be assignable or otherwise transferable
by either party without the
express written consent of the other party.
Any attempt by either party to assign any of
its rights or delegate any of its
duties under this Agreement without the prior
written consent of the other party shall be
null and void and may
be cause for termination of
this Agreement, in
accordance with and subject to
the terms and conditions set forth
in Section 6 above. Subject
to the above, this
Agreement shall be binding upon and
take effect for the benefit
of the successors and assigns of the parties to this Agreement.




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9.2Waiver,
Amendment, Modification. No waiver,
amendment or modification, including those
by custom, usage
of trade, or
course of dealing,
of any provision
of this Agreement will be effective unless
in writing and signed by the party against
whom such waiver, amendment or modification
is sought to be enforced.
No waiver by any party of any default
in performance by the other party under this Agreement or
of any breach
or series of breaches by the other party of any of the terms
or conditions of this
Agreement shall constitute a waiver of
any subsequent default in performance
under this Agreement or any subsequent breach
of any terms or conditions
of that Agreement. Performance
of any obligation required of a party under
this Agreement may be waived only by
a written waiver signed by a duly authorized
officer of the other party, that waiver shall be effective only with respect
to the specific obligation described in that waiver.


 


9.3Force
Majeure. Neither party
will be deemed
in default of this
Agreement to the extent
that performance of
its obligations, or
attempts to cure any breach,
are delayed or prevented by reason of
circumstance beyond its reasonable control, including without limitation
fire, natural disaster, earthquake, accident or other acts of God ("Force
Majeure"), provided that the party seeking to delay its performance gives the
other written notice of any such
Force Majeure within 15 days after
the discovery of the
Force Majeure, and further provided that
such party uses its good
faith efforts to cure the Force Majeure. If there is a Force Majeure, the
time for performance or cure will
be extended for a period equal to
the duration of the Force Majeure. This Article shall not be applicable to any payment
obligations of either party.


 


9.4Cumulative
Rights. Any specific
right or remedy
provided in this
Agreement shall not be
exclusive but shall
be cumulative upon
all other rights and
remedies set forth in this section and allowed under
applicable law.


 


9.5Governing
Law. This Agreement
shall be governed
by the laws
of the State
of Oregon, United States
of America.


 


9.6Entire
Agreement. The parties
acknowledge that this
Agreement expresses their entire
understanding and Agreement,
and that there
have been no warranties, representations,
covenants or understandings made by either party
to the other except such as are expressly
set forth in this section. The parties
further acknowledge that this Agreement supersedes, terminates
and otherwise renders null
and void any and
all prior Agreements or contracts, whether written or oral, entered into between
Vendor and Master Rep with respect to the matters expressly set forth in this Agreement.


 


9.7Counterparts.
This Agreement may
be executed in
multiple counterparts, any one
of which will
be deemed an
original, but all of which shall constitute
one and the same instrument.


 


9.8Attorney
Fees. If either
party is required
to retain the
services of any
attorney, or other
resource, to enforce
or otherwise litigate or defend
any matter or
claim arising out of or in connection
with this Agreement, then the prevailing party shall be entitled to recover from the
other party, in addition to any other relief awarded or granted, its reasonable costs
and expenses, including attorneys' fees, incurred
in the proceeding.


 


9.9Severability.
If any provision
of this Agreement
is found invalid
or unenforceable under judicial
decree or decision,
the remainder shall
remain valid and enforceable according to its terms. Without limiting the previous, it is expressly understood and agreed
that each and every provision of this
Agreement that provides for a limitation of
liability, disclaimer of warranties,
or exclusion of damages is intended by the parties to
be severable and independent of
any other provision and to be enforced
as such. Further, it is expressly understood and agreed that if any remedy under this
Agreement is determined to have failed of its essential
purpose; all other limitations of liability and exclusion of
damages set forth in this section shall remain in full
force and effect.




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9.10Miscellaneous.
The parties acknowledge
and agree that
the extent of
damage to the Master
Rep in the
event of breach by the Vendor of
any of the covenants contained
in this Agreement will be difficult or impossible
to ascertain and that there will be no adequate remedy
of law available to the Master Rep
in the event of such breach. Consequently, the Vendor agrees that, in the event
of such breach, the Master Rep, in addition to receiving damages for the
breach, shall be entitled
to enforce any and all
of the covenants contained in this Agreement by injunctive
or other equitable relief.


 


9.11Notices.
All notices, demands
or consents required
or permitted under
this Agreement shall
be in writing and shall be delivered
by commercial courier or mailed certified
return receipt requested
to the respective parties at the addresses set
forth above or at such other
address as such party shall specify to
the other party in writing. Any notice required
or permitted to be given by the provisions of this Agreement shall be conclusively
deemed to have been received on the
day it is delivered to that party by U.S. Mail with Acknowledgment of
Receipt or by any commercial courier providing equivalent acknowledgment
of receipt.


 


9.12Captions
and Headings. Captions
and section headings
used in this
Agreement are for convenience
only and are not
a part of this Agreement and
shall not be used in construing it.


 


We
have carefully reviewed
this contract and
agree to and
accept its terms
and conditions.  We are executing
this Agreement as
of the day and year first written
above.


 


	KMH Associates, Inc.	Nyxio Technologies Corporation
	 	 
	/s/ Howard Blumberg	/s/ Giorgio Johnson
	By: Howard Blumberg	By: Giorgio Johnson
	President	President and CEO


 




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 Exhibit


Master Representative Compensation


 


1.           
The Master Rep's
compensation for sales
made under this
Agreement shall be
as follows: The Master
Rep shall be
entitled to a total commission for each individual
sale of the products/services arranged through the Master
Rep or his Sub Reps of not less than 5%, unless agreed
in writing otherwise for the particular sale and prior
to said sale, of the net invoice
of each sale.


 


1.1              
For orders
accepted by Vendor,
the Master Rep
shall be paid
commission pro rata for
the portion of
each partial or
total shipment(s) made
to said customer on said sale equal to the
applicable commission percentage provided above,
times the net invoice price of the
Products/services being shipped, which said commission
payment(s) shall be due and payable to the Master Rep by the 20th day of the
next calendar month following receipt
by Vendor of customer's payment
for any such partial or total shipment(s)
made to the customer, up to the maximum total
commission for each individual sale provided above, less any deductions for
returns or allowances.


 


1.2              
The term
"net invoice price"
shall mean the
total invoice price
at which the
sale is invoiced to
the customer, excluding
all shipping and
mailing costs, taxes, duties, insurance, any allowances or discounts granted
to the customer and all charges for installation or instruction., including but not limited to Market Development
Funds, co-op or SPA allowances.


 


2.           
There shall be
deducted from any
sums due the
Master Rep:


 


2.1             
An amount
equal to commissions
previously paid or
credited to the
Master Rep on sales
where all or
substantially all of the
consideration relating to that has since
been returned to the customer or
in the event only a portion of such consideration has since been returned to
the customer or allowances have been credited to
the customer by the Vendor,
the pro rata amount of previously
paid or credited commissions on such returns or allowances.


 


2.2             
A pro rata
amount of commissions
previously paid or
credited to the
Master Rep on sales
where less than
the total purchase
price of the Products/services is
ultimately paid by the customer, whether by reason of
the customers bankruptcy, insolvency or
for any other reason whatsoever, in the
Vendor's judgment, renders the account uncollectible in whole or in
part, in which event, if any sums are later realized upon the uncollectible account, the
Vendor will pay the Master Rep the
percentage of commission applicable to the amount
of the actual collection.




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3.0
Fees: Fees shall
be comprised of
a monthly retainer
at a rate
of $36,000.00 per annum,
payable monthly for an initial
period of 6-months, with the option to
renew for additional 6
month increments, for the duration of this
Agreement, at Vendor's discretion. Vendor's
option to renew shall be made known
to the Master Rep no less than fifteen (15) days prior to the expiration of each aforementioned
increment. The monthly fee payment of $3,000 USD
shall be due and payable in advance
on the first business day of each
month. In lieu of U.S. Dollars, the Vendor may pay the Master
Rep unrestricted shares of Vendor's
stock (currently traded OTC
Market) whose value shall be taken
at the end of trading OTC Market
trading day (5 PM Eastern time) on
the first business day of each calendar month. Details of stock issue to be attached
to this Agreement prior to execution of this Agreement.


 


4.0
Expenses: Vendor shall,
in its discretion,
offer expense reimbursement
for preapproved travel expenses
for the purpose
of selling the Vendor's products.
Expense reimbursement shall be paid upon the submission of an expense report for said
purpose, by Vendor's check or wire transfer.








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Addendum
to current Nyxio
Technologies Corp Agreement Exhibit
A


Master
Representative (KMH Associates,
Inc.) Compensation


 


This change
dated January 17,
2014 and
retroactive to January
1, 2014,
is a change to Paragraph 3 to the above titled
Exhibit
A of said Agreement dated
May 23, 2013 by and between Nyxio
Technologies Corp and KMH Associates, Inc.


 


Effective
January 1,
2014 -
As follows:


 


3Fees: Fees
shall be comprised
of a monthly
retainer at
a rate of
$36,000.00 per annum,
payable
monthly for the term (two
years as of date
first written above) of this Agreement.
The Vendor's decision as to
whether to renew this
Agreement shall be made known to the
Master Rep no less than fifteen (15) days prior
to the expiration
of this Agreement. The monthly
fee payment of $3,000.00 USD shall
be due and payable in
advance on the first business
day of each
month. In
lieu of U. S. Dollars the Vendor may pay
the Master Rep a
number of unrestricted shares
of the Vendor's stock
(Currently traded in
the OTC market) valued at $3000.00
USD as of the per share value
taken at the end of trading of
the OTC Market on the
first business
day of each calendar month.








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Addendum 1

Master Representative Compensation


Effective October 1, 2014


Changed and Agreed:


 


Exhibit A paragraph 3.0 Fees: Fees shall be comprised of
a monthly retainer at a rate of $36,000.00 per annum, payable monthly for an initial period of 6-months, with the option to renew
for additional 6 month increments, for the duration of this Agreement, at Vendor’s discretion. Vendor’s option to renew
shall be made known to the Master Rep no less than fifteen (15) days prior to the expiration of each aforementioned increment.
The monthly fee payment of $3,000 USD shall be due and payable in advance on the first business day of each month. In lieu of U.S.
Dollars, the Vendor may pay the Master Rep unrestricted shares of Vendor’s stock (currently traded OTC Market) whose value
shall be taken at the end of trading OTC Market trading day (5 PM Eastern time) on the first business day of each calendar month.
Details of stock issue to be attached to this Agreement prior execution of this Agreement.


Shall now read:


3.0 Fees: Fees shall be comprised of a monthly retainer at
a rate of not less than $120,000.00 per annum, payable monthly. The monthly fee payment of not less than $10,000 USD shall be due
and payable in advance on the first business day of each month. In lieu of U.S. Dollars, the Vendor may pay, in part or total,
the Master Rep unrestricted shares of Vendor’s stock (currently traded QTC Market) whose value shall be taken at the end
of trading OTC Market trading day (4 PM Eastern time) on the first business day of each calendar month.


 


	KMH Associates, Inc.	Nyxio Technologies Corporation
	 	 
	/s/ Howard Blumberg	/s/ Giorgio Johnson
	By: Howard Blumberg	By: Giorgio Johnson
	President	President and CEO











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