SALES AND SERVICE ADMINISTRATION AGREEMENT
THIS AGREEMENT made as of the 1st day of September, 1996 by and
between IMSCO TECHNOLOGIES, INC., a Delaware corporation, with an office at 00
Xxxxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000, and its subsidiaries (herein
collectively called "IMSCO") and BPV ENTERPRISES, LTD., a New York corporation,
with an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (herein called
"Universal");
W I T N E S S E T H
WHEREAS, IMSCO has developed and is developing products which
incorporate electrostatics for the separation of substances from fluids and
other products (herein called the "Products"); and
WHEREAS, Universal has expertise in manufacturing, sales, warehousing,
sales fulfillment and administration of products similar to the IMSCO Products;
and
WHEREAS, IMSCO desires to have Universal supervise the manufacturing
and warehousing of the Products, fulfillment of sales, and administration of
sales and Universal is willing to undertake such duties (herein such activities
are called "Services");
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
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1. Appointment of Universal
1.1. IMSCO hereby appoints Universal for the term of this agreement
as its representative for Sales and Services Administration, and Universal
hereby accepts such appointment.
1.2. IMSCO hereby agrees to transmit promptly to Universal any and all
inquiries, orders and other communications received by IMSCO relating to the
Products or Services arising out of, or calling-for manufacturing, warehousing,
shipment and follow-through of Products and Services such that Universal may
assist IMSCO in fulfilling such orders.
2. Duties of Universal
Universal shall undertake the following:
A. Sales and administrative support to IMSCO and its subsidiaries'
leaders, who are the ultimate sales managers and directors of sales
policy for their respective products. IMSCO and Universal acknowledge
and agree that Universal shall not initiate any sales without the
prior consent of IMSCO and/or its respective subsidiary leaders
regarding the sales of any Products.
B. Generation of sales leads under the direction of IMSCO and its
subsidiary leaders.
C. Preparation of sales and marketing packages, including paper printed
and computer formatted sales presentations, at the direction and
technical supervision IMSCO and its respective subsidiary leaders.
D. Assistance to IMSCO and its respective subsidiary leaders in hiring
and coordination of field sales representatives.
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E. Support services to sales representatives, including non-technical and
technical advice where appropriate.
F. Quantitative operations support to field representatives, including
computerized purchase order and inventory status programs,
computerized sales representative performance records and commission
earnings.
G. Maintenance of purchase order, merchandise production status,
inventory and distribution computerized database updated daily to the
extent practicable for all Products.
H. Warehousing supervision.
I. Systems implementation for computerized warehousing and record
maintenance for warehousing of domestic inventory.
J. Supervision of transportation and delivery of Products from warehouse
to customer.
K. Monitoring and administration of post-sales operation, including
customer satisfaction and payment.
L. Universal shall be reimbursed by IMSCO for any direct thirdcosts
related to the design or production of manuals, collection of debt,
warehousing costs, shipment or delivery, production of sales or
marketing literature, travel, manufacturing, packaging, design,
advertising or any other expense normally associated and required to
support similar products and services.
3. Term of Agreement
This agreement shall commence as of August 1, 1996 and shall expire at
the close of business on July 31, 2003, provided that IMSCO may, at its option,
continue this agreement for an additional period of five years, expiring July
31, 2008, by giving notice to Universal of its election to do so not later than
June 30, 2003. Should IMSCO exercise its option
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not to renew this Agreement at the end of its term, Universal shall be credited
with six months for each year served and compensated by averaging payments to
Universal for the last three years of this Agreement.
4. Compensation
(a) There is no minimum required compensation payable by IMSCO for the
Turnkey Sales Administrative and Fulfillment Services outlined above. Universal
will receive a fee equal to 2.5% of all xxxxxxxx received from sales of all
Products, Services, licenses or royalties, payable monthly in arrears; provided,
however, that if sales are less than $5 million in any year, no compensation
shall be payable for such period.
(b) Notwithstanding any of the forgoing, in the event that Universal
generates sales of any Products, Services, licenses or royalties through its own
efforts, its shall be paid a sales commission in an amount equal to 2.5% of the
price actually collected by IMSCO. This sales commission shall be payable in
addition to the commission set forth in subsection (a) above. In the event that
the customer introduced by Universal continues to purchase products after the
term of this Agreement, IMSCO shall continue to pay Universal the sales
commission set forth in this subsection (b).
5. Technical Assistance
5.1. If Universal requests, IMSCO agrees, within 30 days after such
request, to send a skilled technician for such duration as Universal shall
request and IMSCO shall approve (IMSCO agrees, however, that such approval shall
not be unreasonably withheld). The purpose of such technician's visit shall be
to provide Universal with technical assistance and advice regarding the
operation, selling and servicing of the Products.
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5.2. IMSCO shall supply Universal, without cost with all reasonably
necessary technical information, in order to enable Universal properly to
prepare sales literature and operating manuals.
6. Termination.
6.1 Termination. Universal's engagement hereunder may be terminated without
any breach of this Agreement upon written notice from IMSCO to Universal only as
set forth in this Article.
6.2 Cause. IMSCO may terminate Universal's engagement hereunder at any
time for cause, which shall be deemed to include but not be limited to the
following:
(a) Universal's engaging in fraud, misappropriation of funds, embezzlement
or like conduct committed against IMSCO.
(b) Universal's conviction of a felony.
(c) Universal's material violation of a generally recognized policy of
IMSCO.
(d) Universal's material violation of any provision of this Agreement.
6.3 Notice of Termination. Any termination of Universal's engagement by
IMSCO shall be communicated by sixty (60) days written notice of termination to
the other party hereto. For purposes of this Agreement, "Notice of Termination"
shall mean a notice which shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for the termination of Universal's
engagement under the provision so indicated.
7. Relationship of the Parties
This agreement shall not be construed to create between IMSCO and
Universal, or
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their respective successors and assigns, the relationship of principal and
agent, joint-venturers, co-partners or any other similar relationship, the
existence of which is hereby expressly denied by IMSCO and Universal. Neither
party shall be liable to any third party in any way for any engagement,
obligation, contract, representation, transaction, negligent act or omission to
act, of the other except as expressly provided herein.
8. Miscellaneous
8.1. All notices, exercises of options, requests, demands, and other
communications provided for by this agreement shall be in writing, and shall be
deemed to have been given at the time when airmailed at any general or branch
United States Post Office, enclosed in a registered post aid envelope, addressed
to the address of the respective party stated below, or to such changed address
as such party may have fixed by notice to the address set forth at the beginning
of this Agreement.
8.2 This agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto.
8.3 This agreement shall he governed by the law of the State of New York.
8.4. This agreement sets forth the entire agreement and understanding
between the parties as to the subject matter hereof and merges and supersedes
all prior discussions, agreements and understanding of every kind and nature
among them. Neither party shall he bound by any condition, definition, warranty
or representation other than is expressly provided for in this agreement or as
may be on a date subsequent to the date hereof duly set forth in writing signed
by the party to be bound thereby. If for any reason IMSCO sells, spins off or
changes the structure of any subsidiary which will affect this Agreement, IMSCO
will compensate Universal
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for any loss in compensation sustained by this change.
8.5. This agreement may not be modified except by another agreement in
writing, executed by the parties hereto, and this agreement shall not he
discharged except by performance or by a written instrument executed by the
parties thereto.
8.6. In the event that any provision or provisions of this agreement shall
he deemed to he illegal or unenforceable, such illegality or unenforceability
shall not effect the validity and enforceability of the remaining legal and
enforceable provisions hereof, which shall be construed as if such illegal or
unenforceable provision or provisions had not been inserted herein.
8.7. The headings of the paragraphs hereof are inserted as a matter of
convenience and for reference only and in no way define, limit or describe the
scope of this agreement or the intent of any provision hereof.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to
he executed, in their corporate names by their respective officers thereunto
duly authorized, the day and year first above written.
IMSCO TECHNOLOGIES, INC.
By: /s/ Xxx X. Xxxx,
--------------------
President
BPV ENTERPRISES, LTD.
By: /s/ Xxxxxx Xxxxx,
--------------------
President
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