NON-EXCLUSIVE BUY / SELL AGREEMENT
GUARDIAN(R) Products
THIS AGREEMENT is made as of the 10th day of January 2006 by and
between Generac Power Systems, Inc. (Generac), a Wisconsin Corporation,
located in Xxxxxxxx, Xxxxxxxxx 00000, XXX and
Genco Power Solutions, Inc. (Buyer).
ARTICLE I. APPOINTMENT AND SCOPE
1.1 Appointment. This Agreement constitutes an appointment of Buyer as a
non-exclusive buyer of Generac Guardian products listed on Appendix One. This
Agreement is non-exclusive and Generac has the absolute right to make direct
sales in any geographic area and to appoint additional Buyers in any geographic
area.
1.2 Scope. The relationship between Generac and Buyer is that of a
seller and buyer. Neither Buyer nor its employees and agents are or will be the
agents or representatives of Generac for any purpose whatsoever. Buyer, its
employees or agents, are not granted by this agreement or otherwise any
expressed or implied right or authority to assume or create any obligation or
responsibility on behalf of or in the name of Generac. Generac agrees to sell
and Buyer agrees to buy the Generac Guardian products listed on Appendix One
under the terms and conditions listed herein.
ARTICLE II. BUYER'S SALES OBLIGATIONS
2.1 Insurance. Buyer shall maintain in effect during the term hereof and
for a period of no less than five years thereafter appropriate liability
insurance policies with a recognized carrier providing aggregate coverage of not
less than $2 million and not less than $1 million per occurrence.
2.2 Training. In order to provide and develop qualified personnel, Buyer
shall send appropriate personnel, at its own expense, to conferences and
training programs provided by Generac.
2.3 Sales promotion and advertising. Buyer will promote the sale of
Generac Guardian products listed on Appendix One and will advertise with a
reasonable program of local advertising. Generac will provide for purchase
brochures and advertising material for use by Buyer. At Generac's sole
discretion, Generac may fund approved co-op advertising based upon Buyer's order
level up to 2% of Buyer's total Generac net invoice purchases on a yearly basis.
2.4 Inventory. Buyer agrees to maintain sufficient inventory of Generac
Guardian parts and literature to meet its customers' needs.
2.5 Service. Buyer shall provide an adequate service facility and will
service all Generac Guardian products as requested by end users of Generac
Guardian products without regard to the origin of sale.
2.6 Warranty. Generac's warranty as stated in its warranty policy and
procedure statement shall apply to Generac Guardian products and Buyer agrees to
provide warranty service for the products without regard to the origin of sale.
Generac will be responsible for the cost of service and parts required under
warranty in accordance with its warranty policy and procedure statement.
ARTICLE III. TERMS AND CONDITIONS OF SALE
3.1 Acceptance of Orders. No order submitted by Buyer for the purchase
of Generac Guardian products or parts shall obligate Generac in any manner
whatsoever unless and until such order is accepted by Generac's written
acknowledgment.
3.2 Pricing. Purchases from Generac under this Agreement will be made at
the current price FOB placeCityWhitewater, StateWI, country-regionUSA, subject
to discounts established by Generac in its sole discretion or other agreed
terms. Buyer will receive no commission or other remuneration on direct sales
made by Generac unless agreed to in advance in writing on a case-by-case basis.
3.3 Terms of Payment. Terms of payment will be as set forth in
Generac's acknowledgment and invoice. Buyer will promptly provide Generac's
credit department with financial and other information for determination of
credit status as requested from time to time by Generac's credit department.
Generac may increase or reduce Buyer's credit limit from time to time as
deemed appropriate by Generac's credit department. Generac shall be entitled
to its costs and attorney's fees incurred to collect any past due amount,
whether or not litigation is commenced.
3.4 Claims. Orders from Buyer that are accepted and approved by
Generac will be filled in the ordinary course of business. However, Generac
will not be liable for any failure to accept or fill such orders. Generac will
not be liable for any delays in filling such orders nor be liable to Buyer for
the loss of Generac product sales, nor for any damage to products occurring
after the products are delivered to either a common or contract carrier
consigned to Buyer or to a representative of Buyer.
3.5 Sales Restriction. Notwithstanding any other provision in this
Agreement, Buyer shall not sell any Generac Guardian products or parts for use
in connection with any chicken farm, hog farm, veal farm, confinement
livestock feeding operations or fish hatchery operations. Buyer agrees to
indemnify, defend, and hold harmless Generac from and against any claims,
damages, liabilities, costs and expenses (including attorney fees and costs)
arising out of or relating to Buyer's violation of this paragraph 3.5.
3.6 Additional Terms and Conditions. Buyer agrees to be bound by such
additional terms and conditions of sale as provided in Generac's standard
acknowledgment and invoice forms, which terms and conditions shall prevail
over any conflicting terms and conditions contained in Buyer's purchase order
form.
ARTICLE IV. CONFIDENTIAL INFORMATION
Buyer acknowledges that during the course of this Agreement it may
receive access to information concerning Generac's marketing and business
plans, sales strategies, advertising programs, pricing, costs, customers,
technology and manufacturing methods, regardless whether Generac will
designate this information as confidential. Buyer shall hold all such
information in strict confidence and shall not use or disclose the same except
as required to perform its obligations under this Agreement. Buyer shall use
any Generac trademark only with the express consent of Generac, and said
trademarks shall be limited to the uses stated in this agreement.
ARTICLE V. TERM AND TERMINATION
5.1 Term. Until terminated as provided in paragraph 5.2, 5.3 or 5.4,
this Agreement shall continue in full force and effect.
5.2 Termination without cause. Either party may terminate this
Agreement without cause with 90 days prior written notification.
5.3 Termination with cause. This agreement may be terminated upon
written notification for any of the following reasons: (a) effective
immediately, if Buyer should violate or fail to satisfy any term or provision
of this agreement; (b) effective immediately, if Buyer knowingly makes any
false or untrue statements or representations to Generac herein or in the
performance of its obligations hereunder; and (c) effective immediately, if
either party is subject to voluntary or involuntary bankruptcy, has a negative
net worth, or is unable to pay its debts as they come due.
5.4 Automatic Termination. This Agreement between both parties
herein shall terminate automatically in the event Generac has received no
acceptable orders for Generac product from Buyer for a period of one hundred
and eighty (180) consecutive days. Further, this Agreement shall terminate
automatically in the event Buyer engages in a change of control, which
includes, but is not limited to, a sale of a controlling interest in stock or
equity or a sale of all or substantially all of the Buyer's assets.
5.5 Sole Remedy. Generac's repurchase of Buyer's inventory of
Guardian products or Buyer's right to sell such inventory if not so
repurchased by Generac, shall constitute Buyer's sole remedy for the
termination by Generac of this Agreement and shall be in lieu of all other
claims that Buyer may have against Generac as a result thereof. Under no
circumstances shall Generac be liable to Buyer by reason of termination of
this Agreement for compensation, reimbursement or damages for any reason,
including: (a) loss of prospective compensation or future profits; (b)
goodwill or loss thereof; or (c) expenditures, investments, leases or any type
of commitment made in connection with the business of such party or in
reliance on the existence of this Agreement.
ARTICLE VI. GENERAL PROVISIONS
6.1 Force Majeure. The non-monetary obligations of either party to
perform under this Agreement shall be excused during each period of delay
caused by matters such as fires, riots, flood, strikes, shortages of fuel,
power, raw materials, or supplies, government orders, freight embargo,
transportation delays, or acts of God, which are reasonably beyond the control
of the party obligated to perform.
6.2 Forum Selection / Applicable Law. Buyer agrees that any suit
brought by any party hereto relating to this Agreement shall be brought in a
court of competent jurisdiction located in the State of placeStateWisconsin,
and Buyer hereby consents to venue in such court. This Agreement shall be
construed, enforced, and performed in accordance with the laws of the State of
placeStateWisconsin without reference to the principles of conflicts of laws.
6.3 Entire Agreement. This Agreement sets forth the entire Agreement
and understanding between the parties on the subject matter hereof. Neither of
the parties shall be bound by any conditions, definitions, representations, or
warranties with respect to the subject matter of this Agreement, other than as
expressly provided herein or as duly set forth on or subsequent to the date
hereof in writing, signed by a duly authorized representative of the party to
be bound thereby. This Agreement shall supersede any prior agreements between
the parties hereto.
6.4 Severability/Waiver. The illegality or unenforceability of any
provision of this Agreement shall not affect the validity and enforceability
of any remaining provisions hereof. The failure of either party at any time to
require performance by the other party of any of the provisions herein shall
not operate as a waiver of the right of such party to require strict
performance of the same or other provisions hereof at a later time.
6.5 Alteration. This Agreement is not subject to alteration except
as mutually agreed in writing.
6.6 Arbitration. Unless otherwise mandated by applicable law, any
dispute that cannot be amicably resolved shall, at the election of either
party, be heard, settled and decided by the Rules of the American Arbitration
Association in effect as of the date thereof by one arbitrator selected by the
parties in good faith, who shall be disinterested in the dispute and shall
have no connection with either party. If the parties cannot agree on the
choice of arbitrator, the arbitrator shall be appointed by the American
Arbitration Association. Such arbitration shall be conducted in English and
shall take place in placeCityWaukesha, StateWisconsin, unless otherwise
agreed. Judgment upon the award of the arbitrator is final, and may be entered
in any court of competent jurisdiction.
IN WITNESS WHEREOF, Generac and Buyer have caused this instrument to be
executed by their duly authorized employees, as of the day and year first
above written.
GENERAC POWER SYSTEMS, INC. Genco Power Solutions, Inc.
addressStreetP.O. Box 297 0000 X. Xxxxxxx Xxxxxxx, #000
Xxxxxxxxxx, XX 00000 Xxxx Xxxxx, XX 00000
Telephone: 000-000-0000 Telephone: 000-000-0000
Facsimile: 262-473-5514 Facsimile: 000-000-0000
APPENDIX ONE TO BUY / SELL AGREEMENT
(Please Print or Type Clearly)
Date of Agreement: January 10, 2006
Buyer's Company Name: Genco Power Solutions, Inc.
State / Country of Incorporation: Palm Beach, Florida
Buyer's Company Address: 0000 X. Xxxxxxx Xxxxxxx, #000, Xxxx Xxxxx, XX 00000
Title of Officer Executing Agreement: Xxxxx X. Xxxxxx
Contact Person: Xxxxx X. Xxxxxx
Telephone No.: (000) 000-0000 Fax No.:(000) 000-0000
The following terms are incorporated by reference into the Agreement.
Generac Guardian products covered by the Agreement are the products checked and
approved below:
AUTOMATIC TRANSFER SWITCH (ATS)
100-200 Amps TS
GUARDIAN GENERATOR PRODUCT LINE TS
6 - 40kW Generators
GENERATOR READY KIT TS
GUARDIAN ULTRASOURCE PORTABLE GENERATORS TS
12,500 and 15,000 Watt
QUIETSOURCE GENERATOR PRODUCT LINE TS
The products covered by this Agreement shall be made available to Buyer only
in such models and under such trademarks as shall be determined solely by
Generac from time to time.
Once completed, please return with other documents to:
GUARDIAN Division
Generac Power Systems, Inc.
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000
