Exhibit 10.7
CONTRACT SALES REPRESENTATIVE
AGREEMENT
THIS AGREEMENT (Agreement) is entered into this 27th day of October
2004, by and between Reclamation Consulting and Applications Inc., a company
organized under the laws of Colorado with its principal place of business at
00000 Xxxxxxxxx Xxxx., Xxxxx 000, Xxxx Xxxxxx, Xxxxxxxxxx 00000, XXX
and
Xxxxxx Xxxxxxx, an individual having his principal place of business a
_______________________________________________________________ (`Contract
Sales Representative')
RECITALS
RCAI manufactures and distributes certain asphalt and cement product
release agents, lubricants and cleaners, which are used in the construction,
paving and similar industries and which are sold under the RCAI trademarks
`Alderox(TM)', ASA-12(TM), KR7(TM), DCR(TM), Paver Blend and TSR(TM).
RCAI desires to appoint Contract Sales Representative to promote,
market, sell and service RCAI's products and Contract Sales Representative
desires to promote, market, sell and provide customer service for RCAI products
in the territory, defined herein below.
In consideration of the mutual representations, agreements and
conditions contained in this Agreement, RCAI and Contract Sales Representative
hereby agree as follows:
SECTION 1: DEFINITIONS
1.1 `Products' means asphalt, cement and related product release
agents, lubricants and cleaners, specifically Alderox(TM) ASA-12(TM) Asphalt
Release Agent, Alderox(TM) KR7(TM) Concrete Release Agent & Form Oil and
Alderox(TM) DCR(TM) Drag Chain and Drag Slat Release Agent and Lubricant,
Alderox(TM) Paver Blend paving equipment release agent and cleaner and
Alderox(TM) TSR(TM) oil sands and mining release agent in liquid form that RCAI
formulates and manufactures. RCAI authorizes Contract Sales Representative to
promote, market, sell and provide customer service of and for these Products
under the RCAI Trademarks. RCAI may, at its sole discretion and in writing, add
additional Products to this Agreement as they become available.
1.2 `Territory' means the State of Pennsylvania.
1.3 `Effective Date' means the date first written above which will be
concurrent with the date when an authorized representative of the last party
hereto executes this Agreement.
1.4 `Agreement Year' means any partial or whole calendar year,
commencing with the Effective Date hereof, or any such subsequent period during
the continuance of this Agreement.
1.5 `Trademarks' means all trademarks, trade names, designs, logos or
other protected or protectable commercial symbols used by RCAI to identify RCAI
as the source of the Products to which RCAI grants Distributor the right of
distribution hereunder and as set forth in Schedule A hereto.
1.6 `Documentation' means any promotional, advertising, technical or
training materials developed and furnished by RCAI to Distributor hereunder,
specifically intended for the public, including customers and potential
customers and concerning the promotion, application or handling of the Products.
1.7 `Contract Sales Representative' means Xxxxxx Xxxxxxx, and any
sub-subcontractor, agent, representative, successor or assign to whom any of the
rights or obligations of Contract Sales Representative herein are assigned or
delegated upon the prior written consent of RCAI.
SECTION 2: GRANT OF CONTRACT SALES REPRESENTATIVE RIGHTS AND RESPONSIBILITIES
2.1 As of the Effective Date of this Agreement and for the term
hereof, RCAI hereby appoints Contract Sales Representative and Contract Sales
Representative hereby accepts the appointment to promote, sell, market and
provide customer service for the Products in the Territory under the terms and
conditions of this Agreement.
2.2 The exclusive rights granted herein will apply provided Contract
Sales Representative achieves the Minimum Sales Objectives in the Territory for
each Agreement Year during the term hereof as further described below.
2.3 During the term hereof, Contract Sales Representative will refrain
from directly promoting, selling or servicing the Products outside the Territory
by soliciting orders, establishing or operating any branch or facilities for
said purposes outside the Territory, or taking any other direct action to obtain
customer orders outside of the Territory without prior written consent from
RCAI.
2.4 During the term RCAI shall appoint no other sales agents to sell
the Products within the Territory, provided minimum sales objectives are
achieved as set out below. RCAI will use reasonable efforts to refer to Contract
Sales Representative any customer inquiry or order originating from Contract
Sales Representative's Territory.
2.5 The rights of Contract Sales Representative to promote, sell or
provide customer service for the Products include the right of subcontract, but
only upon the prior written consent of RCAI. All other rights not expressly
granted in this Agreement to Contract Sales Representative are reserved to RCAI.
SECTION 3: AUTHORIZED USE OF TRADEMARKS
3.1 As of the Effective Date of this Agreement and for the term
hereof, RCAI hereby grants Contract Sales Representative the nonexclusive,
nontransferable right to use the Trademarks set forth in Schedule B hereto in
connection with the promotion, distribution and servicing of the Products in the
Territory. RCAI may amend Schedule B from time to time.
3.2 Contract Sales Representative will comply with all RCAI
requirements for affixing or using the Trademarks on or in connection with the
Products.
3.3 During the term hereof, Contract Sales Representative will
represent to customers and other third parties that Contract Sales
Representative is an authorized independent representative of RCAI and the
Products for the Territories. Contract Sales Representative will refrain from
using any trademarks or other identifying symbols that may be considered by
customers or other third parties to be misleading as to the identity of Contract
Sales Representative, the relationship of RCAI and Contract Sales
Representative, or the origin or nature of the Products.
SECTION 4: MINIMUM SALES
4.1 The minimum volume of sales of the Products that Contract Sales
Representative commits to use its best efforts to achieve in the Territory on an
annual basis in the first Agreement Year is 60,000 gallons (avg. 5,000 gallons
per month). RCAI will review the annual volumes of sales of the Products prior
to the beginning of any successive term during which this Agreement may continue
and RCAI may change and adjust such minimums as it, in its sole judgment, sees
fit.
4.2 Contract Sales Representative will use its best efforts to achieve
the Minimum Sales in any given Agreement Year. In particular, Contract Sales
Representative will:
a) actively promote, sell and service the Products in the
Territories;
b) diligently pursue sales leads provided by RCAI;
c) initiate sales programs, campaigns, surveys, promotions and
advertising programs;
d) comply with all provisions of Sections 8 and 9 hereof on
training and advertising;
e) respond promptly and fully to any of RCAI's requests for
information on customers or market conditions in Contract
Sales Representative's Territory.
4.3 In the event that Contract Sales Representative fails to achieve
the Minimum Sales in any Agreement Year, RCAI may, in its sole discretion,
revise the Minimum Sales for the Territory, and/or revoke the exclusive
appointment granted herein in the Territory with immediate effect and appoint
other Contract Sales Representative(s) in the Territory, and/or terminate this
Agreement in full immediately upon 20 days written notice to Contract Sales
Representative.
SECTION 5: TERMS OF DELIVERY
5.1 Unless otherwise agreed, all Products for which RCAI accepts
purchase order are FOB RCAI's facility. Transportation and delivery fees are to
be paid by customer.
SECTION 6: TERMS OF PAYMENT
6.1 Purchase Orders from Customers will be sent directly to RCAI
with copy to Contract Sales Representative.
6.2 Invoices will be sent directly from RCAI to Customer with
copy to Contract Sales Representative.
6.3 Contract Sales Representative will be paid a sales
commission of $1.50 per gallon of product purchased by
customers within its Territory.
6.4 Sales commission payments will be made to Contract Sales
Representative by RCAI immediately upon receipt of payment
from the customer.
6.5 Contract Sales Representative shall pay RCAI a one-time
License Fee of $25,000 upon execution of this Agreement.
This License Fee will secure exclusive license for the RCAI
Products within the Territory for a period of 1 year.
6.6 Upon receipt of payment of the License Fee, RCAI will
provide Contract Sales Representative with one (1) spray
applicator system suitable for demonstration projects, 300
gallons of Alderox(TM) product, all required sales,
marketing and promotional materials, and a minimum of three
(3) days product and sales training.
SECTION 7: QUALITY CONTROL & SAFETY STANDARDS
7.1 Contract Sales Representative will:
a) employ and maintain sufficient personnel to perform the
obligations of Contract Sales Representative herein and
ensure their adequate training in accordance with this
Agreement;
b) provide customers with adequate information and training on
the safe and effective handling of the Product(s) and their
applications;
b) furnish all market development information reasonably
requested by RCAI concerning the customers of Products sold
by Contract Sales Representative; and
c) notify RCAI by phone, confirming in writing or confirming by
e-mail, as promptly as practicable after it comes to
Contract Sales Representative's attention, of any customer
complaints regarding the Products.
d) Advertise and publicize the Products in the Territory in
accordance with any RCAI advertising and promotional
guidelines set forth in any Documentation or other
materials, or as provided during any sales training or
market development assistance by RCAI. All advertising
and/or promotional material related to the Alderox(TM)
products must be approved in writing by RCAI prior to use.
SECTION 8: LIMITED WARRANTIES FOR PRODUCTS
8.1 RCAI hereby warrants with respect to all Products delivered to
Distributor pursuant to the terms and conditions hereof that all such Products
will be suitable for the applications intended, provided they are used as is
intended from the date of delivery to Distributor until one (1) year from the
pick-up date.
8.2 RCAI's entire liability and Contract Sales Representative's
customers' exclusive remedy is limited to the replacement without charge, of any
Products which prove not to function as intended within the warranty period.
8.3 RCAI will not be liable for the replacement of Products which, in
RCAI's sole opinion, have been subjected to misuse, accident, alteration,
neglect or damage.
8.4 The warranties provided herein are the only warranties made by
RCAI and excludes all other express and implied warranties including those of
merchantability and fitness of the Products for a particular purpose.
8.5 IN NO EVENT WILL RCAI BE LIABLE FOR DAMAGES OF ANY KIND, DIRECT OR
INDIRECT, INCLUDING, WITHOUT LIMITATION, GENERAL AND SPECIAL DAMAGES SUFFERED BY
CONTRACT SALES REPRESENTATIVE OR ANY CUSTOMER OR SUBCONTRACTOR ARISING FROM
BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT, EQUITY, OR ANY
OTHER LEGAL GROUND OF ACTION.
SECTION 9: CONTRACT SALES REPRESENTATIVE'S LIABILITY
9.1 Contract Sales Representative will limit its representations on
warranty with regard to the Products to correspond to the provisions of this
Agreement.
SECTION 10: PROPRIETARY RIGHTS
10.1 Contract Sales Representative on behalf of itself, its officers,
employees, agents, representatives, and assigns:
a) acknowledges that RCAI is the owner of all proprietary rights in
the Products and the Trademarks, to which RCAI grants Contract
Sales Representative the rights to sell and use pursuant to the
provisions of this Agreement; and
b) will refrain from any unauthorized or infringing use of the
Products, Trademarks or any Documentation for the term hereof and
thereafter.
10.2 Promptly after Contract Sales Representative learns of any
suspected or actual unauthorized third party use of the Products, Trademarks or
Documentation, Contract Sales Representative will notify RCAI of said
unauthorized use or disclosure.
10.3 Should RCAI decide in its sole discretion to take any action to
defend against or terminate said infringing or unauthorized use of its
proprietary rights in the Contract Sales Representative's Territory, Contract
Sales Representative will, upon RCAI's request, render any assistance RCAI may
require, at RCAI's expense.
SECTION 11: TERM AND TERMINATION
11.1 This Agreement will commence on the Effective Date hereof and
will continue for an initial term of one (1) year (Initial Term). This Agreement
may be renewed at RCAI's sole option for one or more successive terms of 1 year
each (Successive Term) by 90 days prior written notice by RCAI to Contract Sales
Representative. At the time of renewal Contract Sales Representative will:
a) have complied with its best efforts obligation to achieve the
Minimum Sales Objective for the Agreement Year concerned; and
b) have complied with all other obligations of this Agreement to
RCAI's satisfaction.
11.2 This Agreement may be terminated without cause by either party
hereto if the party wishing to terminate gives prior written notice to the other
party at least 90 days prior to the end of the Initial Term or any Successive
Term.
11.3 RCAI may terminate this Agreement at any time during the Initial
Term or any Successive Term by giving written notice to Contract Sales
Representative, notice effective upon the date given, in the event of any one or
more of the following:
a) the failure of Contract Sales Representative to achieve the
Minimum Sales, provided, however, that RCAI may elect in lieu of
termination, to revise the Minimum Sales, appoint other Contract
Sales Representative(s) in the Territory or take any other
measures to ensure that the market in Contract Sales
Representative's Territory is optimally developed;
b) Contract Sales Representative's default in payment when due of any
amount payable to RCAI, provided however, in lieu of or in
addition to termination, RCAI may take any measures to mitigate or
reduce the extent of Contract Sales Representative's default.
c) Contract Sales Representative's breach of any obligation
concerning RCAI's proprietary rights;
d) Contract Sales Representative's breach of any obligation or
representation, other than those of paragraphs a), b) and c)
above,
e) Contract Sales Representative's attempted assignment of this
Agreement or any of rights granted hereunder by Contract Sales
Representative by agreement or operation of law, without the prior
written consent of RCAI;
f) Contract Sales Representative's unauthorized development of new
products related to the Alderox(TM) products and/or unauthorized
development of the Alderox(TM) products.
g) any legal or business transaction or event which causes a change
in majority ownership of Contract Sales Representative and
effectively results in an assignment of this Agreement to owners
substantially different from the owners of Contract Sales
Representative at the time of execution of this Agreement without
the prior written consent of RCAI; and
h) any insolvency or inability of Contract Sales Representative to
pay debts as and when due, or the initiation or tendency of any
proceeding involving the insolvency, bankruptcy, reorganization,
or liquidation of Contract Sales Representative.
SECTION 12: EFFECTS OF TERMINATION
12.1 Subject to Section 15.6, upon termination, Contract Sales
Representative will immediately discontinue the promotion, selling and servicing
of the Products and will cease to represent itself as an authorized Contract
Sales Representative of RCAI.
12.2 Contract Sales Representative will further discontinue any use of
RCAI's Trademarks and any Documentation. At RCAI's option, Contract Sales
Representative will certify destruction of Documentation.
12.3 Contract Sales Representative will refrain from using any name,
xxxx or logo which may create a likelihood of confusion with RCAI's Trademarks
and will further refrain from copying in whole or in part any of the
Confidential Information or Documentation.
12.4 Unless termination occurs for cause, Contract Sales
Representative may sell any Products remaining as of the date of termination,
provided it does so within 30 days of the date of termination. All other
Products remaining thereafter must be disposed of by Contract Sales
Representative and certified to RCAI.
12.5 Nothing herein will relieve or extinguish any of Contract Sales
Representative's payment obligations under any provision of this Agreement.
Nevertheless, in the event of insolvency or refusal to pay for any reason by
Contract Sales Representative, RCAI may take reasonable actions to mitigate its
losses by sale of the Products ordered to other Contract Sales Representatives
or customers.
12.6 Contract Sales Representative will offer to RCAI and RCAI may at
its sole option, elect to assume the rights and obligations of any agreements
between Contract Sales Representative and its customers for the service of the
Products, effective as of the date of termination or expiration.
12.7 In no event will termination or expiration with or without cause
of this Agreement entitle Contract Sales Representative to any compensation by
RCAI on any grounds whatsoever.
SECTION 13: GOVERNING LAW, ARBITRATION, ATTORNEY'S FEES
13.1 Governing Law. This Agreement together with the Schedules hereto
and any valid agreement subsequently entered into between the parties regarding
the subject matter hereof will be governed and construed in accordance with the
laws of California.
13.2 Dispute Resolution. In the event of any controversy or claim
arising out of or relating to this Agreement, the parties agree to try in good
faith to settle the claim by mediation administered by the American Arbitration
Association (`AAA') under its International Commercial Mediation Rules before
resorting to arbitration. Any controversy or claim that cannot be resolved by
mediation will be settled by arbitration administered by the AAA in accordance
with its International Arbitration Rules. To the extent these rules require
supplementation and do not contradict the aforesaid Rules, the arbitral tribunal
will apply the California rules on Arbitration and Conciliation of International
Commercial Disputes. Unless otherwise agreed, the place of arbitration will be
Los Angeles, California. Judgment on the award rendered by the arbitrator will
be final and may be entered in any court having jurisdiction thereof.
13.3 In the event of unauthorized use or disclosure of the Products,
Trademarks, or Documentation, Contract Sales Representative acknowledges that
RCAI will be irreparably harmed and, as there is no adequate remedy at law, RCAI
may seek and obtain injunctive relief against Contract Sales Representative for
any harm arising from or relating to said unauthorized use or disclosure.
Moreover, should the interim measures for injunctive relief under the AAA
International Arbitration Rules prove inadequate, RCAI may seek injunctive
relief, specific performance or any other equitable relief from any competent
court having jurisdiction.
13.4 The award of the arbitrator will be final and binding on the
parties, provided said award does not contradict in whole or in part the state
of the governing law hereof. Judgment upon the award rendered may be entered in
any court having jurisdiction or application may be made to such court for a
judicial acceptance of the award and an order of enforcement.
13.5 Attorney's Fees. In the event an action or arbitral proceeding is
instituted relating to this Agreement, the party which the arbitrator or court
of competent jurisdiction shall deem to have substantially prevailed therein
shall be entitled to recover all costs, expenses, and attorney's fees adjudged
by such arbitral tribunal or court.
SECTION 14: GENERAL
PROVISIONS
14.1 Relationship of the Parties. Contract Sales Representative is an
independent sales representative of RCAI, but in all of its operations hereunder
Contract Sales Representative will operate as an independent contractor and will
conduct its business at its own cost. Contract Sales Representative has no
authority to make any representation or warranty on behalf of RCAI, except as
specified in this Agreement. RCAI is not be responsible for payment of any
taxes, income or otherwise, on behalf of Contract Sales Representative nor is
RCAI responsible to provide any benefits whatsoever.
14.2 Force Majeure. In the event that either party is rendered wholly
or partially unable to carry out its obligations under this Agreement due to
reasons beyond its control (including, without limitation, acts of God,
industrial disputes, war or civil disturbances, fire, floods, storms,
earthquakes, landslides, acts of any governmental authority or agency, embargoes
or unavailability of equipment or transport), the failure to so perform will be
excused and not constitute default hereunder during the continuation of the
intervention of such force majeure. The party affected shall give prompt notice
to the other party, shall take all reasonable steps to eliminate the intervening
event and shall resume performance as promptly as is practicable.
14.3 Assignment. This Agreement will be binding upon and inure to the
benefit of RCAI, its successors and assigns. This Agreement will not be
assignable or transferable by Contract Sales Representative unless prior written
consent is obtained from RCAI and provided that the assignee or transferee
agrees in writing to be bound by all the terms, condition and obligations of
this Agreement by which Contract Sales Representative is bound and Contract
Sales Representative remains subject to the obligations on confidentiality and
proprietary rights set forth herein. Any assignment of this Agreement or any
rights or obligations arising therefrom without RCAI's prior written consent
shall be deemed void.
14.4 Severability. If any provision of this Agreement is held to be
invalid, illegal, or unenforceable by a court or other tribunal of competent
jurisdiction, this Agreement will be considered divisible as to such provision
and the remaining provisions hereof will remain valid and binding.
14.5 No Waiver. Failure or delay by either party to exercise or
enforce any term, right, power or privilege of this Agreement will not operate
as a waiver thereof nor will any single or partial exercise of any term, right,
power or privilege preclude any other or further exercise thereof.
14.6 Entire Agreement. This Agreement, and all schedules hereto form
the entire agreement of the parties hereto with respect to the subject matter
hereof. No modification, renewal, extension or waiver of this Agreement or any
of its provisions will be binding unless made in writing and signed by each
party's duly authorized representative, except as to the Schedules attached
hereto, which RCAI may amend from time to time during the term hereof.
14.7 Survival. Neither termination nor expiration will affect any
right or obligation of either party hereunder which by its terms continues
beyond the effective date of termination or expiration.
14.8 Notices. Unless otherwise provided herein, any notice or other
written communication required or permitted in connection with this Agreement
will be properly given when made in writing and sent by first-class registered
or certified airmail, return receipt requested, or by courier or other personal
delivery service, and properly addressed to the appropriate party at the address
set forth above, until changed by written notice. Notice shall be effective when
given.
IN WITNESS WHEREOF, RCAI and Contract Sales Representative have each
caused this Agreement to be executed on its behalf by its duly authorized
officer as of the date first written above.
RCAI CONTRACT SALES REPRESENTATIVE
By: /s/ XXXXXX XXXXXX By: /s/ XXXXXX XXXXXXX
----------------- ------------------
Xxxxxx Xxxxxx Xxxxxx Xxxxxxx
President
