EXHIBIT 10.38
PURCHASE AND DISTRIBUTION AGREEMENT
THIS PURCHASE AND DISTRIBUTION AGREEMENT ("Agreement") is effective as
of December 1, 1997 (the "Effective Date"), notwithstanding the actual date of
execution, by and between FIRST RECOVERY, a division of ECOGARD, INC., a
Delaware corporation, with offices located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (hereinafter Ecogard, Inc., including its First Recovery
division, is referred to as "First Recovery"), and SYSTEMONE TECHNOLOGIES INC.
(hereinafter referred to as "SystemOne"), a wholly owned subsidiary of ▇▇▇▇▇▇
INDUSTRIES INC., a Florida corporation ("▇▇▇▇▇▇"), with offices located at ▇▇▇▇
▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, SystemOne has available for supply various models of washer
units and brake washers marketed under the trademark SystemOne/registered
trademark/, more particularly defined as the "Equipment" below;
WHEREAS, First Recovery desires to purchase and distribute the
Equipment in certain defined territories, and SystemOne desires to sell the
Equipment to First Recovery for such sales and distribution;
WHEREAS, First Recovery, ▇▇▇▇▇▇ and The Valvoline Company, a division
of Ashland Inc. ("Valvoline"), a Kentucky corporation, previously entered into a
Master Lease and Distribution Agreement effective as of August 1, 1996 ("Initial
Agreement") and a Commission Sales Representation Agreement effective as of
January 14, 1997 (the "Second Agreement") for the purpose of evaluating the
market for and performance of the Equipment and First Recovery's ability to
market and distribute the Equipment; and
WHEREAS, the Initial Agreement expired in accordance with its terms,
the Second Agreement will expire in accordance with its terms on January 14,
1998, and the parties wish to terminate and supersede the Second Agreement as of
the Effective Date hereof, in accordance with the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants, agreements and conditions hereinafter set forth and the mutual
benefits to be derived therefrom, the sufficiency and adequacy of which are
hereby acknowledged, First Recovery and SystemOne hereby agree as follows:
1. MINIMUM PURCHASE COMMITMENT; TERMS OF PURCHASES
1.1 During the term of this Agreement which commences on the Effective
Date and terminates on June 30, 1998 (the "Term"), First Recovery shall
purchase from SystemOne the washer units and brake washers identified
in EXHIBIT A to this Agreement, attached hereto and incorporated herein
by reference (the "Equipment"), in the following quantities and upon
the following terms:
PERIOD MINIMUM EQUIPMENT PURCHASES
------ ---------------------------
12/01/97 through 400 parts washer units plus 200 brake washers
12/31/97 payment net ninety (90) days
01/01/98 through 600 parts washer units plus brake washers as
03/31/98 ordered - payment net ninety (90) days
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1.2 First Recovery shall purchase the Equipment from SystemOne by
submitting written purchase orders to SystemOne, consistent with the
quantities set forth in Section 1.1 hereof. SystemOne will accept such
purchase orders and sell the Equipment to First Recovery. Each unit of
Equipment purchased by First Recovery pursuant to Section 1.1 hereof
shall be made available by SystemOne for pickup by First Recovery
within five (5) business days of the date of SystemOne's receipt of
First Recovery's purchase order F.O.B. SystemOne's manufacturing
facility. With respect to purchase orders for Equipment in excess of
the quantities set forth in Section 1.1 hereof, SystemOne may, at its
option, determine to sell the equipment to the extent the Equipment is
available, upon the following terms:
(A) SystemOne shall notify First Recovery by both fax and
telephone when any order is available for pickup at
SystemOne's facility (this notice shall hereafter be referred
to as the "Availability Notice").
(B) Upon receipt of an Availability Notice, First Recovery
shall arrange for shipping and/or transportation of the
Equipment from SystemOne's facility and pay all shipping,
insurance and related costs. Risk of loss and title to the
Equipment shall pass to First Recovery upon pickup of the
Equipment by, or on behalf of, or for the account of First
Recovery at SystemOne's manufacturing facility.
(C) First Recovery shall use reasonable and good faith efforts
to pick up or cause the pick up of the Equipment that is the
subject of an Availability Notice within ten (10) business
days of receipt of the Availability Notice; provided, however,
that Equipment required to be purchased by First Recovery
during the period December 1, 1997 through December 31, 1997
as set forth in Section 1.1 hereof, shall be picked up by
First Recovery on or before December 31, 1997. First Recovery
will cause the Equipment to be shipped to a Service Center (as
hereinafter defined).
(D) All Equipment purchased from SystemOne by First Recovery
shall be factory filled with ProMax/registered trademark/ 2000
Solvent provided to SystemOne at no additional cost by First
Recovery.
(E) At the request of First Recovery, SystemOne shall handle,
deliver and install units of Equipment purchased by First
Recovery from SystemOne which have been sold or leased by
First Recovery or required under First Recovery's "free trial
program" within the First Recovery Territory. First Recovery
agrees that it shall, from time to time, advise SystemOne of
its free trial program Equipment requirements. As described in
Section 1.3 below, a portion of the per unit handling fee to
be paid by First Recovery set forth on EXHIBIT A hereto
represents the cost of handling, delivering and installing
such Equipment (the "Handling Fee"). As set forth on EXHIBIT
A, the Handling Fee shall be adjusted based on the monthly
volume of Equipment handled, delivered and installed by
SystemOne.
1.3 During the Term, for each unit of Equipment purchased by First
Recovery, First Recovery shall pay to SystemOne the Purchase Price as
set forth on EXHIBIT A, which includes payment for (i) the purchase of
the unit of Equipment; (ii) the labor involved in the initial factory
fill of the Equipment with ProMax 2000 Solvent provided by First
Recovery as set forth in Section 1.2(d); (iii) the handling, delivery
and installation of Equipment, as set forth in Section 1.2(e); and (iv)
warranty services for a period of five (5) years with respect to
Equipment purchased during the term of this Agreement in accordance
with SystemOne's standard warranty policy as set forth in EXHIBIT B,
attached hereto and incorporated herein by reference. First Recovery
shall pay SystemOne the Purchase Price for Equipment purchased within
ninety (90) days of the date of SystemOne's invoice.
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2. TERM/TERMINATION
This Agreement shall terminate on June 30, 1998. Additionally, either
party shall have the right to terminate this Agreement (i) five (5)
days after any default in payment by the other party; (ii) at any time
by giving thirty (30) days prior written notice to the other party if
the other party has breached any of its material duties or obligations
under this Agreement, other than a default in payment, provided that
the non-defaulting party has requested the other in writing to
immediately commence curing the default or breach and to either
complete curing the same within twenty (20) business days or to pursue
with due diligence the prompt curing of same if it cannot be cured
within twenty (20) business days, and, if the same is not then cured,
then the non-defaulting party may, without prejudice to any other right
or remedy it may have, terminate this Agreement; or (iii) immediately
by either party if the other party is finally adjudicated to be
insolvent or bankrupt or a trustee or receiver in bankruptcy has been
appointed for such party and not discharged within sixty (60) days.
3. TITLE, RISK OF LOSS
Title and risk of loss to each unit of the Equipment purchased by First
Recovery shall pass to First Recovery upon loading of the Equipment on First
Recovery's designated transportation vehicle at SystemOne's manufacturing
facility, as set forth in Section 1.2(b) and as provided in Section 1.2(c). As
more fully set forth in Section 7.1 hereof, SystemOne shall maintain insurance
coverage on, among other things, the Equipment owned by First Recovery which is
to be handled, delivered and installed by SystemOne naming First Recovery as an
additional insured and loss payee.
4. TERRITORY
4.1 Except as otherwise specifically provided herein, during the Term
of this Agreement, (i) First Recovery shall have exclusive rights to
purchase from SystemOne and market and distribute through sale or lease
the Equipment only in the counties in which the cities identified in
EXHIBIT C, attached hereto and incorporated herein by reference, are
located (the "First Recovery Territory") and to National Account
Customers (as hereinafter defined). First Recovery shall not market
and/or distribute, through sale, lease or otherwise, the Equipment to
non-National Account Customers outside the First Recovery Territory.
4.2 In marketing and distributing the Equipment in the First Recovery
Territory and to any National Account Customer First Recovery shall
have the right to use third parties or agents that it, or its
affiliate, The Valvoline Company, a division of Ashland Inc.
("Valvoline"), currently has a distribution or agency business
relationship with to assist in the sales, marketing and distribution of
the Equipment in accordance with the requirements of this Agreement,
including but not limited to subdistributors. First Recovery shall not
use any third parties or agents in connection with the sale, marketing
and distribution of the Equipment that it or Valvoline does not have a
distribution or agency relationship as of the date hereof without the
prior written consent of SystemOne, which consent shall not be
unreasonably withheld, conditioned or delayed.
4.3 With regard to the State of Florida ("Florida Territory"), during
the Term SystemOne agrees that First Recovery may solicit trial
placements of Equipment on behalf of SystemOne as a commissioned sales
agent only, pursuant to which SystemOne will pay First Recovery a
commission equal to ten percent (10%) of all completed sales or leases
of Equipment with SystemOne customers with whom First Recovery
solicited trial placements. Such solicitations by First Recovery shall
be in accordance with procedures developed by and acceptable to
SystemOne. Commission amounts due to First Recovery pursuant to this
paragraph shall be paid
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to First Recovery within sixty (60) days of the close of such sale or
lease. First Recovery shall also have the right to transfer any
Equipment purchased from SystemOne to Valvoline for use in its
equipment loan program, provided that the total number of units of
Equipment used by Valvoline in this manner in the Florida Territory
during the Term shall not exceed three hundred (300) units. First
Recovery shall have no power to bind SystemOne in any contractual
relationship, assume any obligations, or make any warranties or
representations on behalf of SystemOne; all proposals, pricing
arrangements and all other aspects of any Equipment trial usage, sales
or leases shall be made solely by SystemOne. Notwithstanding the
foregoing, SystemOne shall have total freedom to sell, market, promote,
and distribute the Equipment in the Florida Territory and First
Recovery shall have no rights whatsoever with regard to the Florida
Territory.
4.4 With respect to national customers, which means any customer that
operates in more than one state and in more than fifteen (15) locations
("National Account Customers"), First Recovery may, during the Term
hereof, on an exclusive basis, sell, market and distribute the
Equipment, in accordance with the terms of this Agreement, provided
that, prior to any sale of Equipment to any National Account Customer
location located outside a one hundred twenty (120) mile radius from
the nearest Service Center, the parties will mutually agree on the
method of providing service center support for any Equipment acquired
by such National Account Customer location. The foregoing shall not be
deemed to require SystemOne to open or maintain any Service Center
except as expressly provided herein.
4.5 First Recovery shall use reasonable efforts (utilizing its and
Valvoline's marketing, distribution and management systems) to develop,
promote and expand the market for, and sell the Equipment throughout
the First Recovery Territory. Subject to the terms of this Agreement,
including Section 9, First Recovery shall assume sole responsibility
for all dealings between it and its customers or prospective customers,
including all credit risks and risks regarding collection of
receivables with respect to Equipment sold or leased by it to third
parties, and for matters relating to the supply and composition of the
ProMax 2000 solvent.
5. INSTALLATION, SERVICE AND MAINTENANCE OF EQUIPMENT
5.1 SystemOne plans to establish service centers and employ service
technicians to install and service such Equipment (each, a "Service
Center") in accordance with the schedule set forth in EXHIBIT D
attached hereto and incorporated herein by reference. It is intended
that at least one Service Center shall be located in a centralized
location in each of the cities identified in EXHIBIT C so as to provide
convenient and prompt service to Equipment owners or users. The Service
Centers are intended to provide the following services: (i) install
trial units of Equipment purchased by First Recovery for installation
at First Recovery customer locations for evaluation of future purchase
or lease of the Equipment; (ii) install Equipment purchased by First
Recovery at First Recovery customer locations as reasonably requested
by First Recovery; (iii) provide basic training to First Recovery
purchasers/lessees of the Equipment on the proper care and use of the
Equipment upon installation; (iv) perform standard warranty and
maintenance service and repairs; and (v) provide temporary storage of
the Equipment as set forth in Section 1.2(e).
6. PATENT/TRADEMARKS
6.1 SystemOne represents, warrants and covenants to First Recovery
that, to its knowledge, the patents with respect to the Equipment are
valid and current, and that it has received no notice, and is not
aware, that the patents and related intellectual property infringe upon
any rights of any third party. SystemOne shall defend, indemnify and
hold harmless First Recovery, its parent, subsidiaries and affiliate
corporations, and its and their officers, directors, employees and
agents,
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from and against any and all claims, liabilities, suits, proceedings,
judgments, order, fines, penalties, damages, losses, costs and
expenses, including reasonable attorneys' fees which it or they may
hereafter incur, become responsible for or pay out as a result of
circumstances which relate to the design of, patentability of, patent
on, or intellectual property related to the Equipment.
6.2 Subject to the terms hereof and solely in connection with the
performance of First Recovery's obligations under this Agreement,
SystemOne grants to First Recovery, a revocable nonexclusive license
("Revocable License") to use the trademarks, trade names, trade dress
and other designations of source or quality of SystemOne as identified
on EXHIBIT E, attached hereto and incorporated herein by reference.
Such Revocable License shall be strictly limited to First Recovery's
activities in marketing and distributing the Equipment, either by sale
or lease to its customers, and shall survive termination or expiration
of this Agreement only to the extent that First Recovery is continuing
to market and distribute Equipment purchased during the Term. First
Recovery acknowledges that nothing in this Agreement gives it any
right, title or interest in the technology, copyrights, trade secrets,
patents, trademarks, tradenames, trade dress and other property rights
related to the Equipment and designations of source of quality, other
than the Revocable License set forth in this Section 6.2. SystemOne
shall have the right to approve, prior to use by First Recovery, of all
marketing, advertising and other related materials prepared by or for
use by First Recovery. Additionally, any marketing or other material
prepared by or for use by First Recovery utilizing the name "SystemOne"
shall bear an appropriate ▇▇▇▇ indicating that SystemOne is a
registered trademark of ▇▇▇▇▇▇.
6.3 First Recovery shall not alter in any way the appearance of any of
the units of Equipment and shall not remove, deface, alter or cover the
SystemOne identification thereon, except that First Recovery can affix
decals or other First Recovery information to the unit previously
approved in writing by SystemOne.
6.4 During the Term, First Recovery, including its affiliates,
employees, officers, contractors, or agents, agrees (i) not to
decompile and/or reverse engineer the Equipment or any component
thereof, (ii) not to directly or indirectly apply for or attempt to
acquire any rights, patents or copyrights relating to the Equipment or
any component thereof; and (iii) that none of them has any rights or
interest with respect to the technology, copyrights, trade secrets and
patents and other property rights relating to the Equipment, including
all materials, combinations, processes, equipment, design concepts,
documents, data and information incorporating, based upon, or derived
from the foregoing.
7. INSURANCE
7.1 Without limiting, negating or reducing SystemOne's undertaking to
indemnify, defend and hold harmless First Recovery as set forth in
Section 9 of this Agreement, during the Term, SystemOne shall obtain
and continue in full force and effect throughout the term of this
Agreement the following insurance coverage:
/bullet/ Worker's Compensation Statutory
/bullet/ Employer's Liability $5,000,000 per occurrence
/bullet/ Public Liability $5,000,000 per occurrence
/bullet/ Contractual Liability $5,000,000 per occurrence
/bullet/ General Liability, including $5,000,000 per occurrence
products liability and completed
operations
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The required insurance coverage shall be maintained with
insurance companies qualified to provide coverage where business in
conducted pursuant to this Agreement. SystemOne shall provide First
Recovery with thirty (30) days prior written notice of any change,
modification or termination in or of the above insurance coverage. Upon
request, SystemOne shall provide First Recovery with an insurance
certificate evidencing the required coverage and naming First Recovery
as an additional insured. In addition to the above, SystemOne shall
maintain all risk property insurance coverage on the Equipment owned by
First Recovery which is to be handled, delivered and installed by
SystemOne pursuant to Section 1.2(e) hereof and shall provide First
Recovery, upon request, with an insurance certificate evidencing such
coverage and naming First Recovery as an additional insured and loss
payee as their interests may appear.
Notwithstanding the foregoing, after SystemOne has obtained
the required insurance coverages, should the insurance premiums for
such or similar coverage be increased by more than one hundred percent
(100%), SystemOne shall not be obligated to maintain such insurance,
provided that SystemOne has complied with the notice provisions of this
Section.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 SystemOne represents, warrants and covenants to First Recovery,
effective as of the date of this Agreement and again as of the date of
each shipment of Equipment purchased by First Recovery as follows:
(A) SystemOne's parent, ▇▇▇▇▇▇, owns valid and current patents
for and other intellectual property related to the Equipment
and, to its knowledge, such property rights do not infringe on
the intellectual property rights of any third party;
(B) SystemOne is licensed to use and has the authority to
license others to use the intellectual property associated
with the Equipment;
(C) SystemOne believes that ▇▇▇▇▇▇ will be entitled to seek
enforcement of its patent against infringers on that patent,
including, but not limited to, enforcement against any third
party manufacturing identical or similar equipment;
(D) that SystemOne has the requisite skills and facilities to
fill requested orders for the Equipment in accordance with the
terms of this Agreement;
(E) that the Equipment purchased by First Recovery is
materially free from defects and will conform to SystemOne's
written performance criteria as set forth in EXHIBIT F,
attached hereto and incorporated herein by reference, and will
be covered by the manufacturer's standard warranties set forth
in EXHIBIT B, attached hereto and incorporated herein by
reference;
(F) that the Equipment has received safety certification from
Intertek Testing laboratories - ETL and C-ETL (Canada); and
(G) that SystemOne shall comply with all federal, state and
local laws, rules and regulations that may now or hereafter be
applicable to SystemOne's obligations under this Agreement in
manufacturing the Equipment.
8.2 First Recovery represents, warrants and covenants to
SystemOne, effective as of the date of this Agreement and
again as of the date of each purchase of Equipment from
SystemOne as follows:
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(A) that First Recovery has the requisite skills, facilities
and personnel to market, promote and sell the Equipment in
accordance with the terms and requirements of this Agreement;
(B) that First Recovery is duly organized and validly existing
under the laws of the State of Delaware, has all requisite
power and authority to conduct its business as now and
proposed to be conducted and to execute, deliver and perform
it obligations under this Agreement; and that this Agreement
has been duly authorized and when executed and delivered will
represent a valid and binding obligation enforceable against
First Recovery in accordance with its terms;
(C) that First Recovery shall comply with all applicable
federal, state and local laws, rules and regulations of the
United States of America and of any state or political
subdivision thereof and of any other governmental unit or
agency that may now or hereafter be applicable to First
Recovery's obligations under this Agreement;
(D) that First Recovery shall notify SystemOne promptly upon
becoming aware of any adverse information relating to the
safety or effectiveness of the Equipment;
9. INDEMNIFICATION
9.1 SystemOne shall indemnify, defend and hold harmless First Recovery,
its parent, subsidiaries and affiliates, and its and their officers,
directors, shareholders, employees and agents, from and against any and
all claims, liabilities, suits, proceedings, judgments, orders, fines,
penalties, damages, losses, costs, and expenses, including but not
limited to reasonable attorney fees and other expenses of litigation,
which it may hereafter incur, become responsible for or pay out as a
result of death or bodily injuries to any person, destruction or damage
to any property or contamination of or adverse effects on the
environment, arising out of or resulting from SystemOne's patents on or
other intellectual property related to the Equipment, any defect in the
design of the Equipment, or the performance of or the maintenance of
the Equipment, any negligent act or omission of SystemOne, or any
breach of any provision of this Agreement by SystemOne, except to the
extent that such claims, liabilities, suits, proceedings, judgments,
orders, fines, penalties, damages, losses, costs and expenses are
caused by or result from the fault or negligence of First Recovery.
Additionally, SystemOne shall indemnify First Recovery for any
uninsured losses incurred by First Recovery as a result of damage,
theft or loss of Equipment resulting from the negligence, acts or
omissions of the employees, agents and/or contractors of SystemOne in
connection with its handling, delivery and installation of Equipment.
For purposes of this Section, the term "First Recovery" shall include
First Recovery's affiliates, officers, directors, shareholders,
employees, invitees, agents and contractors.
9.2 First Recovery shall indemnify, defend and hold harmless SystemOne,
its parent, subsidiaries and affiliates, and its and their officers,
directors, shareholders, employees and agents, from and against any and
all claims, liabilities, suits, proceedings, judgments, orders, fines,
penalties, damages, losses, costs, and expenses, including but not
limited to reasonable attorney fees and other expenses of litigation,
which it may hereafter incur, become responsible for or pay out as a
result of any loss or damages it or they incur, death or bodily
injuries to any person, destruction or any damage to any property or
contamination of or adverse effect on the environment, arising out of
or resulting from any negligent act or omission of First Recovery, or
any breach of any provision of this Agreement by First Recovery, except
to the extent that such claims, liabilities, suits, proceedings,
judgments, orders, fines, penalties, damages, losses, costs and
expenses are caused by or result from the fault or negligence of
SystemOne. For purposes
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of this Section, the term "SystemOne" shall include SystemOne's
affiliates, officers, directors, shareholders, employees, invitees,
agents and contractors.
10. INDEPENDENT CONTRACTOR
Except for First Recovery's activities as a commissioned sales agent in
the Florida Territory, the parties acknowledge and agree that the relationship
hereby established between SystemOne and First Recovery is solely that of buyer
and seller and that each party is and shall remain an independent contractor
engaged in the operation of its own respective business and in the performance
of its obligations under this Agreement. The provisions of this Agreement shall
not be construed as authorizing or reserving to either party any right to
exercise any control or direction over the operations, activities, employees and
agents of the other in connection with this Agreement, it being understood and
agreed that the entire control and direction of such operations, activities,
employees and agents shall remain with such party. Neither party to this
Agreement shall have the authority to employ any person as agent or employee for
or on behalf of the other party to this Agreement for any purpose, and neither
party to this Agreement, nor any person performing any duties under or engaging
in any work at the request of such party, shall be deemed to be an employee or
agent of the other party to this Agreement. Neither party has any authority to
enter into any contract, assume any obligations, or make any warranties or
representations on behalf of the other party. Nothing in this Agreement shall be
construed to establish a partnership or joint venture relationship between the
parties.
11. FORCE MAJEURE
The performance or observance by either party of any obligations of
such party under this Agreement, other than payment obligations, may be
suspended by it, in whole or in part, in the event of any of the following that
prevents such performance or observance: Act of God, war, riot, fire, explosion,
accident, flood, sabotage, strike, lockout, injunction, inability to obtain
fuel, power, raw materials, labor, containers or transportation facilities,
breakage or failure of machinery or apparatus, national defense requirements, or
any other cause (whether similar or dissimilar) beyond the reasonable control of
such party; provided, however, that the party so prevented from complying with
its obligations hereunder shall immediately notify in writing the other party
thereof (stating the nature of the event, its anticipated duration and any
action being taken to avoid or minimize its effect) and such party so prevented
shall exercise diligence in an endeavor to remove or overcome the cause of such
inability to comply. The suspension of performance shall be of no greater scope
nor longer duration than is required, and in no event longer than sixty (60)
days.
12. ASSIGNMENT
This Agreement shall not be assigned nor can the performance of any
duties be delegated by any party without the prior written consent of the other
party, except that First Recovery may effect an assignment of this Agreement to
a parent, subsidiary or affiliate corporation upon prior written notice to
SystemOne, provided that the assignor's financial strength is equal to or
greater than that of First Recovery's.
13. CHOICE OF LAW
This Agreement, including matters of construction, validity and
performance, shall be governed and construed in accordance with the laws of the
State of New York without giving effect to its choice of law rules.
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14. MISCELLANEOUS
14.1 This Agreement constitutes the full understanding of the parties,
a complete allocation of risks between them and a complete and
exclusive statement of the terms and conditions of their agreement; and
all prior agreements, negotiations, dealings and understandings,
whether written or oral, including the Initial Agreement and the Second
Agreement, regarding the subject matter hereof, are superseded by this
Agreement. Additionally, any terms and/or conditions contained in any
purchase order, oral or written, or in SystemOne's standard warranty
policy, a copy of which is set forth as Exhibit B attached hereto,
inconsistent with any terms and/or conditions set forth herein shall be
of no force and effect unless consented to in writing by the party to
be charged.
14.2 No conditions, usage of trade, course of dealing or performance,
understanding or agreement purporting to modify, vary, explain or
supplement the terms or conditions of this Agreement shall be binding
unless hereafter made in writing and signed by the party to be bound,
and no modification shall be effected by the acknowledgment or
acceptance of any forms containing terms or conditions at variances
with or in addition to those set forth in this Agreement.
14.3 No waiver by either party with respect to any breach or default or
of any right to remedy and no course of dealing or performance shall be
deemed to constitute a continuing waiver of any other breach or default
or of any other right or remedy, unless such waiver be expressed in
writing signed by the party to be bound.
14.4 Section headings as to the contents of particular sections are for
convenience only and are in no way to be construed as part of this
Agreement or as a limitation of the scope of the particular sections to
which they refer.
14.5 In the event any term or provision of this Agreement, or any
portion thereof, or any application of any term or provision shall be
invalid or unenforceable, the remainder of this Agreement or any other
application of such term or provision shall not be affected thereby.
14.6 All rights conferred by this Agreement shall be binding upon,
inure to the benefit of, and be enforceable against the respective
successors and permitted assigns of the parties hereto.
14.7 All notices, requests, and approvals required or permitted under
this Agreement shall be deemed validly given if in writing and
addressed to the party for whom intended at the address of such party
set forth below, and shall be effective upon the earlier to occur of
personal delivery or three (3) business days following such notice,
request or approval having been deposited in the U.S. mail, postage
prepaid, certified or registered, return receipt required.
14.8 The parties agree that the terms and conditions of that certain
Non-Circumvention and Non-Disclosure Agreement, dated as of July 20,
1995, and between ▇▇▇▇▇▇ and First Recovery, a copy of which is
attached hereto as EXHIBIT G, shall be incorporated by reference
herein.
14.9 This Agreement may be executed in identical duplicate copies. The
parties agree to execute at least two identical original copies of this
Agreement. Each identical counterpart shall be deemed an original, but
all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, First Recovery and SystemOne have caused their
respective authorized representatives to execute this Purchase and Distribution
Agreement effective as of the date first above written.
WITNESS: ECOGARD, INC., INCLUDING THE FIRST
RECOVERY DIVISION
____/s/__________________________ By:
_________________________________ Its:
WITNESS: SYSTEMONE TECHNOLOGIES INC.
_______/s/_______________________ By:
_________________________________ Its:
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THE CONFIDENTIAL PORTIONS OMITTED
---------------------------------
BELOW HAVE BEEN FILED SEPARATELY
--------------------------------
WITH THE SECURITIES AND EXCHANGE
--------------------------------
COMMISSION
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* INDICATES PORTIONS OMITTED.
EXHIBIT A
to
AGREEMENT BETWEEN
FIRST RECOVERY, A DIVISION OF ECOGARD, INC.
and
SYSTEMONE TECHNOLOGIES INC.
Dated as of December 1, 1997
I. EQUIPMENT PRICING
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Exhibit B
[SystemOne Logo]
MANUFACTURER'S WARRANTIES
DEFECTS & PERFORMANCE
All SystemOne/registered trademark/ products ("Equipment") are warranted by
SystemOne/registered trademark/ Technologies, a division of ▇▇▇▇▇▇ Industries
Inc. ("Manufacturer"), to be free of defects in materials and workmanship and to
perform in accordance with the Manufacturer's specifications and operating
manual ("Warranty") for five (5) years commencing on the date of delivery
("Warranty Period"). During the Warranty Period, the Manufacturer will repair or
replace the Equipment with like Equipment, at its option, free of charge.
SOLVENT SUPPLY PROGRAM
A solvent supply program ("Supply Program") is available from the Manufacturer.
Under the Supply Program, the Manufacturer shall provide Lessee with a total of
thirty (30) gallons of 140/degree/ solvent per Equipment unit per year. The
price specified under the Lease shall be guaranteed for the first year of the
Lease term and thereafter adjusted for any changes in the Manufacturer's cost of
solvent. Lessee agrees to pay Manufacturer for excess usage of solvent over
thirty (30) gallons per Equipment unit per year at the current solvent price.
Lessee may cancel the Supply Program anytime during the Lease term upon ninety
(90) days notice to the Manufacturer provided Lessee uses only 140/degree/
solvent pursuant to the Manufacturer's operating manual and specifications.
ENVIRONMENTAL ASSURANCE
The Manufacturer warrants, under current interpretation of existing Federal and
state regulations, that the Equipment does not generate hazardous waste provided
(i) no hazardous materials or chemicals are added to or used with the Equipment
and (ii) the Equipment is operated in accordance with the Manufacturer's
operating manual. The Manufacturer has implemented a formal Environmental
Assurance Program to test and document the classification of Equipment residue
as NON haszardous. The Manufacturer, upon request from the customer, shall
provide customers with thirty (30) days of delivery (excluding customers who
currently are or become classified as Conditionally Exempt Small Quantity
Generators upon conversion to SystemOne/registered trademark/) with a labratory
analysis and test results, free of charge, documenting the non-hazardous status
of Equipment residue.
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THE CONFIDENTIAL PORTIONS OMITTED
---------------------------------
BELOW HAVE BEEN FILED SEPARATELY
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WITH THE SECURITIES AND EXCHANGE
--------------------------------
COMMISSION
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* INDICATES PORTIONS OMITTED.
EXHIBIT C
to
AGREEMENT BETWEEN
FIRST RECOVERY, A DIVISION OF ECOGARD, INC.
and
SYSTEMONE TECHNOLOGIES INC.
Dated as of December 1, 1997
FIRST RECOVERY TERRITORY
(which means each county in which each below-named city is located)
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THE CONFIDENTIAL PORTIONS OMITTED
---------------------------------
BELOW HAVE BEEN FILED SEPARATELY
--------------------------------
WITH THE SECURITIES AND EXCHANGE
--------------------------------
COMMISSION
----------
* INDICATES PORTIONS OMITTED.
EXHIBIT D
to
AGREEMENT BETWEEN
FIRST RECOVERY, A DIVISION OF ECOGARD, INC.
and
SYSTEMONE TECNOLOGIES INC.
Dated as of December 1, 1997
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10
Exhibit E
Int. Cl.: 7
Prior U.S. Cls.: 13, 19, 21, 23, 31, 34 and ▇▇
▇▇▇. ▇▇. ▇,▇▇▇,▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ PATENT TRADEMARK OFFICE REGISTERED DEC. 17, 1996
TRADEMARK
PRINCIPAL REGISTER
[SYSTEMONE LOGO]
▇▇▇▇▇▇ INDUSTRIES INC. (FLORIDA COR- OTHER CONTAMINANTS, IN CLASS 7 (U.S.
PORATION) CLS. 13, 19, 21, 31, 34 AND 35).
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ FIRST USE 1-15-1996; IN COMMERCE
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 1-15-1996.
FOR: MACHINES FOR WASHING INDUS- SER. NO. 75-052,475, FILED 2-2-1996.
TRIAL PARTS WITH A CLEANING SOLUTION ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, EXAMINING ATTOR-
IN ORDER TO REMOVE GREASE, OIL AND NEY
