ex1031.htm


    Exhibit 10.29

     

    


    


    DISTRIBUTION
AGREEMENT

    


    


    THIS
DISTRIBUTION AGREEMENT ("Agreement"), effective this 18th day of November, 2008
("Effective Date"), by and between Rayovac division of Spectrum Brands. Inc. a
Wisconsin corporation, with principal offices at 601 Rayovac Drive, Madison,
Wisconsin USA ("Distributor"), and Sunovia Energy. a Florida corporation, with
principal offices at 6408 Parkland Drive, Suite 104. Sarasota. Florida 34243
("Manufacturer").

    


    WITNESSETH

    


    WHEREAS,
Manufacturer is willing to appoint Distributor, and Distributor is willing to be
so appointed as Manufacturer's exclusive distributor, subject to Section 2(a) of
this Agreement, of the "Products" (as hereinafter defined) in the "Territory"
(as hereinafter defined), subject to all of the terms and conditions contained
in this Agreement.

    


    NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration receipt of which is hereby acknowledged, Manufacturer and
Distributor hereby agree as follows:

    


    1.           DEFINITIONS

    


    (a)           "Intellectual
Property" means any and all tangible and intangible· domestic and international
(i) works of authorship. Including ­copyrights, moral rights, and mask
works: {ill trademarks. service marks, trade names, inventions, logos, slogans
and domain names: (iii) trade secrets and confidential information: (IV)
patents: (v) proprietary property (at every kind and nature throughout the world
and however designated) whether arising by operation of law. contract. license,
or otherwise: and (VI) registrations, initial applications, renewals,
extensions, continuations, divisions or reissues of the foregoing now or
hereafter in force.

    


    (b)           “Intellectual
Property Rights" means any and all rights in and to Intellectual
Property.

    


    (c)           "Minimum
Purchase Requirement(s)" means the minimum Quantities of Products which
Distributor agrees to purchase more particularly described and set forth
inExhibit "A" attached hereto and made a part hereof.

    


    (d)           
"Product(s)" means only Wireless Disposable 8attery LED Switch and Outlet Covers
Products including generation 1 (switch and outlet plates that activate when
power goes out); generation 2 (switch and outlet plates that activate when power
goes out and can be used as a nightlight).

    


    (e)           "Territory"
means: exclusive global distribution; provided, however, exclusivity is subject
to Section 2(a) of this Agreement.

    


    (f)           "Purchase
Price(s)" means the price(s) for the Products established by Manufacturer
periodically, with the Initial Purchase Prices being identified and set forth in
Exhibit "8" attached hereto and made a part hereof.

    


    (g)           "Term"
means the period of time during which this Agreement shall remain in full force
and effect (Including any renewals thereof), with the initial Term commencing on
the Effective Date and ending three (3) years later. The option ofadditional
years will be based on performance and market penetration and mutual agreement
as determined by the Distributor and the Manufacturer.

    


    
      
         

      

      
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    2.           APPOINTMENT

    


    (a)           Subject
to all of the terms and conditions contained in this Agreement, Manufacturer
herebyappoints Distributor, throughout the Term, as Manufacturer's exclusive
distributor of the Products in the Territory, and Distributor hereby accepts
such appointment; provided, however, in the event that a minimum purchase
requirement is not agreed to by the Manufacturer and the Distributor upon the
expiration of the Evaluation Period, then the exclusivity provided by this
Agreement shall expire and this Agreement will continue on a non­exclusive
basis.

    


    (b)           Distributor
acknowledges that its appointment hereunder is exclusive.

    


    (c)           Distributor
shall not sell, offer for sale or solicit orders to sell any products
competitive with Products of Manufacturer.

    


    (d)           Distributor
hereby agrees not to sell, market, distribute or in any other manner supply the
Product, directly or indirectly, to any parties outside the
Territory.

    


    (e)           Distributor
is an independent purchaser and seller of the Products. Distributor shall not be
considered an agent or legal representative of Manufacturer for any purpose. In
this regard, Distributor shall have no authority to create any obligation or
responsibility on behalf of Manufacturer.

    


    3.           OBLIGATIONS
OF DISTRIBUTOR

    


    Distributor
shall, at its sole cost and expense and in connection with its activities
hereunder in the Territory:

    


    (a)           exercise
its best efforts to maximize the sale of the Products to customers in the
Territory;

    


    (b)           provide
appropriate storage (facilities, in accordance with all applicable regulations
and reasonable directions given by Manufacture to Distributor from time to time,
for all Products acquired hereunder. and keep all Products in good condition and
free from all damage and contamination which might detract from their
performance.

    


    (c)           maintain
an active sales program and employ trained sales personnel for the sale of
theProducts;

    


    (d)           make
no warranties on behalf of Manufacturer with respect to the Products. and incur
no liability on behalf of Manufacturer, or in any way pledge or purport to
pledge Manufacturer's credit, or describe or hold itself out as an agent or
legal representative of Manufacturer;

    


    (e)           conduct
its business in strict compliance with all governmental laws. ordinances, rules,
regulations and other requirements, now in existence or hereinafter enacted,
applicable to the sale of Product from Manufacturer to Distributor and in the
performance of duties hereunder, including but not limited to U.S. laws and
regulations governing exports under the Export Administration Act, the Foreign
Corrupt Practices Act and anti-boycott regulations (copies of such laws will be
provided upon request); and

     

    
      
         

      

      
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    (f)           obtain
all' import licenses and government approvals necessary to permit the sale by
Manufacturer and purchase by Distributor of products, as well as obtain
approvals from banking and government authorities as may be necessary to ensure
payment to Manufacturer in U.S. Dollars.

    


    4.           FORECASTS

    


    Distributor
shall furnish to Manufacturer. by not later than the tenth (10th) day of each
month a non-binding purchase forecast for its requirements of Products for the
following one hundred twenty (120) days.

    


    5.           ORDERS

    


    (a)           Distributor
shall submit to Manufacturer. for Manufacturer's acceptance. firm written
purchase orders for the Products (signed by a duly authorized representative of
Distributor) within not less than Forty­Five (45) days prior to the desired
delivery date, which shall be understood to mean date of shipment from
Manufacturer's plant, unless otherwise specified in the purchase order. The
terms and conditions of such purchase orders shall be as set forth in this
Agreement and in Manufacturer's then-current terms and conditions of
sale.

    


    (b)        All
orders shall specify a delivery date and place, which shall be a FOB Port,
unless otherwise agreed. Manufacturer shall confirm each such firm written
purchase order, including delivery date and place. unless such order does not
reasonably correspond to the purchase forecast referred to above. Upon
confirmation by Manufacturer in writing of its acceptance of each firm written
purchase order, each such order shall be a binding purchase commitment on the
part of Distributor and a binding supply commitment on the part of Manufacturer
at the applicable Purchase Price.

    


    6.        PRICES

    


    (a)           All
Purchase Prices shall be payable in U.S. Dollars and shall be F.O.B. Port, as
designated by Manufacturer. Distributor shall bear and pay any and all (i)
expenses, including freight. Insurance and transportation from the port of
embarkation to Distributor's warehouse and (ii) present or future local sales,
use, excise or other similar tax or levy, including Import tariffs and duties,
applicable to the sale, use or transportation of the Products.

    


    (b)           Manufacturer
shall establish the Purchase Prices periodically with the initial Purchase
Prices being those set forth in Exhibit "B" hereto. Manufacturer reserves the
right to negotiate an increase or decrease of the Purchase Prices at any time
and from time to time during the Term, upon not less than ninety (90) days'
prior written notice to Distributor: provided, however, that in the event
Distributor does not agree to any such modified Purchase Prices. Distributor may
terminate this Agreement by delivery of at least 60 days, written notice
thereof.

    


    7.           PAYMENT
TERMS


    


    (a)           Invoices
shall be made out and sent by Manufacturer to Distributor as soon as reasonably
practicable following delivery of each Product shipment.

    


    (b)           Each
invoice shall be denominated in U,S. Dollars and shall be payable in U.S.
Dollars, by wire transfer of funds to such account as Manufacturer shall
designate, or in such other manner as shall be agreed upon as needed, within the
SIXTY (60) days after date of shipment.

     

    
      
         

      

      
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    8.           TITLE
AND RISK OF LOSS

    


    Title and
risk of loss or damage to the Products shall pass from Manufacturer to
Distributor immediately upon delivery by Manufacturer to a common carrier at the
U.S. port designated by Manufacturer, for subsequent delivery to
Distributor.

    


    9.           MINIMUM
PURCHASE REQUIREMENTS

    


    The
distributor shall be required to purchase a minimum of 25,000 units from the
Manufacturer.

    


    10.           WARRANTY

    


    All
Product shall be of good and merchantable quality and free from defects in
workmanship and materials for a period of eighteen (18) months from date of
shipment. THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY IS SET FORTH IN
THIS SECTION 10. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
EXPRESSLY DISCLAIMED AND EXCLUDED FROM THIS AGREEMENT. IN NO EVENT SHALL
MANUFACTURER BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT
OF ANY BREACH OF THIS WARRANTY, except to the extent that the laws of a
particular jurisdiction prohibit such limitation with respect to particular
products.

    


    11,           PROMOTIONAL
AND MARKETING ACTIVITIES

    


    Distributor
shall, throughout the Term:

    


    (a)           carry
out its obligations hereunder and diligently to promote and market the Products,
on a wholesale and retail basis within Territory;

    


    (b)           use
the advertising and promotional materials made available by Manufacturer from
time to time, and adhere to Manufacturer's terms

    


    12.           CONFIDENTIALITY

    


    Distributor
shall not, during the Term and for a period of five (5) years thereafter,
directly or indirectly, disseminate or disclose any "Confidential Information"
(as hereinafter defined).

    For
purposes of this Agreement, the term "Confidential Information" shalt mean all
information disclosed to Distributor or known by Distributor as a result of or
through its relationship with Manufacturer not generally known in the industry
In which Manufacturer Is or may become engaged, about Manufacturer's products,
processes, and services, or relating to Manufacturer's research, development,
Inventions, marketing, finance, internal organization, customer lists, price
lists, cost date and sales activities.

    


    13.           INTELLECTUAL
PROPERTY

    


    (a)
Distributor expressly recognizes and acknowledges Manufacturer's sole and
exclusive ownership of, and title to, any and all Intellectual Property Rights
used or embodied In connection with the Products. and Distributor shall not
dispute Manufacturer's ownership of any such rights or use them in any manner
which is adverse to Manufacturer's interests, Distributor shall not acquire any
right, title or interest In any such Intellectual Property Rights.

     

    
      
         

      

      
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    (b)
intentionally omitted]

    


    (c)
Distributor shall not use any of Manufacturer's trademarks or trade names or any
mark or name confusingly similar thereto except as has been approved by
Manufacturer. Distributor's use of such trademarks in any advertising or
promotional materials shall also be subject to Manufacturer's
approval.

    


    14.           FORCE
MAJEURE

    


    Neither
party shall be liable to the other for damages resulting from non-performance or
delay in the performance of any of its respective obligations hereunder if such
non-performance or delay is due to any Act of God or event beyond the reasonable
control of such party, including, without limitation, acts, regulations or laws
of any government, war, civil commotion, destruction of production facilities or
materials by fire, earthquake or storm, labor disturbances, epidemic and failure
of public utilities or common carriers. The party affected by any such act or
event shall immediately notify the other party thereof, and shall take all
measures reasonably available to minimize or eliminate the impediments to
performance.

    


    15.           TERM
AND TERMINATION

    


    (a)           This
Agreement shall terminate upon the expiration of the Term, unless earlier
terminated in accordance with provisions of paragraph (b) or (c) of this Section
15.

    


    (b)           Either
party hereto may terminate this Agreement, upon ninety (90) days' prior written
notice to the other party hereto, in the event of:

    


    (i)           a
default by the other party in the performance of any of its obligations
hereunder which isnot cured within a period of ninety (90) days from the receipt
by such defaulting party of notice ofdefault from the non-defaulting
party;

    


    (ii)           the
filing by or against the other party of a petition in bankruptcy, insolvency
orsimilar proceedings which is not removed within sixty (60) days of such
filing;

    


    (iii)           the
appointment for the other party of a trustee, liquidator or receiver, or
theconsent by such other party to any such appointment;

    


    (iv)           any
general assignment by the other party of all of its assets for the benefit
ofcreditors; or

    


    (v)           a
force majeure occurrence as contemplated by section 15 of this
Agreement.

    


    (c)           Manufacturer
may also terminate this Agreement in the event of:

    


    (i)           Distributor's
failure to make payment when due of an invoice from Manufacturerif such failure
continues for a period of ten (10) Business Days after Distributor's receiptof
written notice from Manufacturer, provided, however, that Manufacturer shall not
be obligated to give more than two (2) such notices of non-payment within any
Contract Year.

    


    (ii)           Or

    


    (iii)           Distributor’s
refusal or inability to create the necessary organization to carry outits
obligations hereunder.

     

    
      
         

      

      
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    (d)           Termination
of this Agreement shall not prejudice any rights accrued to either party as of
the effective date of termination or relieve either party from its obligations
to perform its respective obligations under the provisions of Sections 12,13,16.
17, 18 or 19 of this Agreement which shall survive the termination of this
Agreement irrespective of the cause thereof.

    


    16.           NOTICES

    


    Any and
all notices or other communications required or permitted to be given to either
party hereunder shall be In writing and sent by registered mall, return receipt
requested, or via overnight mail by a nationally­ recognized carrier to each
party at its respective address as set forth below, with all notices to be
deemed effective upon receipt (which In the case of mailed notices shall be ten
[10] days after deposit thereof in the applicable malls):

    


    If to
Manufacturer:

    Donna
Webb

    Sunovia
Energy Technologies, Inc.

    6408
Parkland Drive Sarasota, Fl 34243

    


    If to
Distributor:

    Thomas
Maskel

    Director
Lighting Products

    601
Rayovac Drive Madison, WI 53711

    


    With a
copy to:

    Spectrum
Brands. Inc.

    601
Rayovac Drive Madison. WI 53711

    Attn:
Rayovac Legal Department

    


    17.           INDEMNIFICATION

    


    Distributor
agrees to indemnify and hold Manufacturer harmless from and against any and all
costs, expenses, liabilities, damages, fines, penalties and causes of action
(including reasonable attorneys' fees) arising out of (i) Distributor failing to
perform its obligations hereunder or otherwise breaching this Agreement, (ii)
Distributor's negligence or willful misconduct, or (iii) violation by
Distributor or any employees, agents or contractors of any applicable law or
regulation. Manufacturer agrees to indemnify and hold Distributor harmless from
and against any and all costs, expenses, liabilities, damages, fines, penalties
and causes of action (including reasonable attorneys' fees) arising out of (i)
Manufacturer failing to perform its obligations hereunder or otherwise breaching
this Agreement, including, without limitation, its warranty obligations. (ii)
Manufacturer's negligence or willful misconduct. (iii) violation by Manufacturer
or any employees, agents or contractors of any applicable law or regulation.
(iv) claims that any Product or component manufactured by or for Manufacturer or
its affiliates infringes the Intellectual Property Rights any Person or any
unfair competition claim relating to any Product. or (v) claims for the death of
or injury to any person or damage to any person's property, resulting from
alleged negligence, fault or defect in the manufacture or design of Products or
components manufactured by or for Manufacturer or its affiliates.

    


    18.           GOVERNING
LAW

    This
Agreement shall be governed by and interpreted and construed In accordance with
the laws of the State of Florida.

    


    19.           ASSIGNMENT

    This
Agreement shall be binding upon and Inure to the benefit of­ Manufacturer
and Distributor, their respective successors and assigns; provided, however,
that neither party may assign this Agreement, without the prior written consent
of the other party, which consent shall not be unreasonably withheld,
conditioned or delayed.

    


    20,           MISCELLANEOUS

    


    (a)           Entire
Agreement/Amendment. This Agreement (including all Exhibits hereto) constitutes
the entire agreement and understanding between the parties with respect to the
subject matter hereof, and supersedes any and all prior agreements and
understandings between the parties respecting such subject matter. This
Agreement may not be amended, modified or changed except in a writing signed by
both parties.

    


    (c)           Severability.
In the event that any provision of this Agreement should be declared void,
inoperative or unenforceable by any court of competent jurisdiction, that
provision shall be deemed severable, and the remainder of this Agreement shall
be deemed valid, binding and enforceable to the fullest extent permitted by
law.

    


    (d)           No
Waiver. The failure of either party hereto at any time or times to require
performance of any provision hereof shall in no way affect the right of such
party to enforce such provision at a later date. The waiver by either party of
the other party's breach of any provision contained in this Agreement in anyone
or more instances shall not be deemed to constitute a waiver of any other breach
of the same or of any other provision herein contained.

    


    IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first above written.

    


    By:
Thomas Maskel

    Director
Lighting Products

    Rayovac

    


    Carl L.
Smith

    CEO

    Sunovia
Energy Technologies, Inc.

    
 

    
      
         

      

      
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    EXHIBIT
"A"

     

    Minimum
Annual Purchase Requirement.

    


    The
"Minimum Annual Purchase Requirements" are as follows: There will be no minimum
purchase requirements during the initial six months of this Agreement commencing
on the Effective Date (the ~Evaluation Period"). The purpose of the Evaluation
Period is to provide each of the parties with the ability to determine the
future purchase requirements. At the end of the Evaluation Period, minimal
annual purchase requirements will be negotiated based on the market information
that was acquired during the Evaluative Period. If annual minimum purchase
requirements are not agreed to within thirty (30) days of the expiration of the
Evaluation Period, the exclusivity provision set forth in the Agreement will
expire.

    


     

     

     

     

     

     

     

     

     

     

    
 

    
      
         

      

      
        A-1

        
          

        

      

      
         

      

    

     

    EXHIBIT
"B"

     

    Purchase
Price.

    


    Purchase
price will be determined when the BOM (Building of Material) and the packaging
requirements are clearly defined and can vary depending on the market demands.
Both parties do agree to:

    


    1)
Evaluate the cost on a quarterly basis.

    2)
Communicate PPV (Price Point Variances) in advance and at least sixty (60) days
prior to a scheduled shipment.

    3) That
all 80M components must recognize Intellectual Property and Patent
compliance.

    


    Final
pricing to be agreed on by both parties.

    


    It is the
goal for both parties to continually coordinate efforts in order to establish
the lowest possible price.

    


    Generation
2:

     

     

     

     

     

    TBD based
on features required.

     

     

     

    B-1