Strategic Alliance Agreement
This Strategic Alliance Agreement (the "Agreement") made and entered
into this 3rd day of October, 2002 by and between HydroFlo Incorporated, a North
Carolina corporation located at 0000 Xxxxxxxx Xxxx. Xxxxxxx, XX 00000 (the
"Company") and Tri-Weld, Inc. located at 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000
(the "Manufacturer").
RECITALS
A. The Company is engaged in the sale of water treatment products,
certain of which products are more particularly described in the attached
Schedule A, as the same may be hereafter amended by the mutual consent of the
parties (collectively and including any other products listed in the Company's
catalogues from time to time, the "Products"); and
B. The Manufacturer engages to fabricate such Products for the
Company; and design to meet ASME code and potentially other such codes as may be
required from time to time.
NOW THEREFORE, in consideration of the promises and the mutual promises
and covenants set forth herein, the parties hereby agree as follows:
1. MANUFACTURING RIGHTS. Subject to the terms and conditions set forth
herein, the Company hereby appoints the Manufacturer as producer of the Products
for the Company for the term of this Agreement as provided in Section 2 below.
The Manufacturer agrees that it shall not, directly or indirectly, offer, market,
sell or otherwise deal in any products substantially similar in design or usage
to the Products for sale to the Customers. No other right or license to
manufacture the Products is granted to the Manufacturer by this Agreement.
2 TERM. This agreement shall commence on October 1, 2002 and, unless
sooner terminated as provided in Section 7, shall continue in full force and
effect for a period of one (1) year at which time the agreement shall
automatically renew for a like term (the "Term").
3. DUTIES OF THE MANUFACTURER.
(a) The Manufacturer shall use his best efforts to provide the
finished Products within the times quoted.
(b) The Manufacturer shall comply with all appropriate federal,
state, county and local laws, rules and regulations pertaining
to this Agreement.
(c) The Manufacturer shall, at its own expense, make, execute or
file such reports and obtain such licenses as are required by
law or any public authority with respect to this Agreement and
the design or manufacturing of the Products.
(d) The Manufacturer shall be solely responsible for the
declaration and payment of all local, state and federal taxes
as may accrue because of the Manufacturer's activities in
connection with this Agreement.
(e) The Manufacturer shall maintain as confidential and
proprietary all non-public information and details concerning
(i) this Agreement; (ii) the Products and (iii) the Company's
Products or Prototypes in Development. Notwithstanding the
foregoing, either party to this Agreement may disclose any
otherwise confidential information if the disclosure is
required by a court or governmental authority.
(f) Bear its own costs and expenses incurred in performing its
obligations hereunder.
4. ORDERS AND DELIVERY. The Manufacturer shall receive submitted purchase
orders for Products signed by a duly authorized Company officer and which shall
contain complete information regarding Product price, item number, quantity,
requested delivery dates, shipping instructions and shipping address (each, a
"Purchase Order"). Promptly following receipt of Purchase Order, the
Manufacturer shall acknowledge and confirm the order. Confirmed Purchase Orders
shall be governed by the terms set forth herein to the exclusion of any
additional or contrary terms set forth in the parties' standard sales
transaction forms.
5. LIMITED TRADEMARK LICENSE. During the Term, the Company grants to the
Manufacturer a limited, non-exclusive, royalty-free right to fabricate equipment
for the Company's use or sale. Except as provided in this Section 6, the
Representative agrees not to utilize the HydroFlo logo, trade name or trademarks
in any way or to name HydroFlo executives, employees, members or affiliates in
any advertising format or medium without the express written consent of
HydroFlo.
6. TERMINATION. In the event the Manufacturer breaches any provision of
this Agreement, the Company may terminate this Agreement immediately upon
providing Manufacturer a thirty (30) day right to cure period and the Company
shall have the right to seek all other available remedies. Upon the termination
of this Agreement by The Company, The Company will complete the manufacture of
all in-process orders subject to a Confirmed Purchase Order as provided in
Section 4 and the Manufacturer will complete the fabrication of the same at the
prices then in effect.
7. STATUS OF THE MANUFACTURER. The Manufacturer is duly organized and is
qualified and has all consents, permits and authorizations required to perform
its obligations under this Agreement.
8. RELATIONSHIP OF THE PARTIES. The Representative acknowledges that it
is an independent contractor. Nothing in this Agreement, its provisions or the
transactions, obligations and relationships contemplated hereby shall constitute
either party to this Agreement as the agent, employee or legal representative
for the other party hereto for any purpose whatsoever, nor shall any party to
this Agreement hold itself out as such. This Agreement does not create and shall
not be deemed to create a relationship of partners, joint venturers, associates
or principal and agent between the parties hereto, and the parties acknowledge
that each is acting as a principal hereunder. This Agreement does not constitute
either the sale of a franchise or a dealership to the Representative.
9. AMENDMENT. This Agreement may only be amended by mutual written
agreement of the parties.
10. ENTIRE AGREEMENT. It is expressly agreed by the Parties that there are
no verbal or written representations, understandings, stipulations, agreements,
or promises relating to the subject matter of the Agreement not incorporated in
writing in the Agreement. This Agreement constitutes the entire Agreement
between the Parties hereto, and it cannot be amended except as provided in
Section 10 above.
11. BINDING AGREEMENT; GOVERNING LAW AND VENUE. The Representative
acknowledges that it has read and understands this Agreement and that this
Agreement shall become binding upon the Representative upon execution by both
parties. This Agreement shall be governed by the laws of the State of North
Carolina. Any action or other proceeding initiated by one party to this
Agreement against the other party relating to or for the enforcement of this
Agreement shall be brought in any court of competent jurisdiction in Raleigh,
North Carolina.
12. NOTICE. Any notice or invoice required or permitted herein shall,
unless otherwise specified in this Agreement, be given by facsimile, telex,
cable, registered mail-return receipt requested, or receipted overnight delivery
properly addressed to the party to be notified at its address as stated below,
and shall be deemed delivered when so transmitted.
If to the Company:
HydroFlo, Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attn Xx. Xxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to the Manufacturer:
Tri-Weld, Inc
XX Xxxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Mr. Xxxxx Xxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
13. FORCE XXXXXX. Except as to payment obligations, neither party shall be
liable or considered in default under this Agreement when the delay of
performance is caused by circumstances beyond its reasonable control and
occurring without its fault or negligence, including failure of suppliers,
subcontractors, and carriers, acts of civil or military authorities, national
emergencies, fire, flood, hurricane, acts of God, insurrection, and war,
provided the affected party immediately provides notice thereof to the other and
does those things reasonably possible to resume the timely performance of its
obligations under this Agreement.
14. VALIDITY. In the event that any provision of this Agreement (a) is
found to be invalid or unenforceable by final decision of a court of competent
jurisdiction, or (b) is rendered invalid by reason of subsequently enacted
legislation then that provision shall be of no force or effect, but the
remainder of the Agreement shall continue in full force and effect. If a
provision of this Agreement fails for either of the reasons listed above, the
parties shall enter into immediate negotiations for the purpose of arriving at a
mutually satisfactory replacement for such provision.
15. During the term of this agreement The Manufacturer will maintain in
full force and effect, general liability insurance in dollar values commensurate
with appropriate business practices.
17. The Company shall defend, indemnify and hold Manufacturer harmless from
any claim for The Company's infringement or violation of patent rights of
companies or patents other than The Company's patents.
IN WITNESS WHEREOF, the parties hereto, through their duly authorized
officers, have executed this Agreement as of the date first written above.
HYDROFLO, INC. Tri-Weld, Inc
By: /s/ X X Xxxxxx By: /s/ Xxxxxx May
------------------- -----------------------
Name: X X Xxxxxx Name: Xx. Xxxxxx May
Title: President Title: President
