AGREEMENT
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DISTRIBUTOR AGREEMENT
This Distributor Agreement ("Agreement") is entered into as of the 4th day of
April, 2006 by and between Reclamation Consulting and Applications, Inc., a
Colorado corporation, (the "Company") and Applied Industrial Technologies, Inc.,
an Ohio corporation ("Distributor").
WHEREAS, Company is engaged in the in the manufacture of certain asphalt and
cement product release agents, form oils, curing agents, lubricants and
cleaners, which are used in the construction, paving and similar industries and
which are sold under the RCAI trademarks `Alderox(R)', ASA-12(R), KR7(R),
DCR(R), Paver Blend(TM) and TSR(R). (hereinafter the "Products"); and
WHEREAS, Distributor is desirous of being the Company's exclusive distributor of
the Product for the Company for the next two (2) years in the Territory (as
defined below).
NOW, THEREFORE, in consideration of the mutual promises described herein, the
parties agree as follows:
1. APPOINTMENT
Company hereby appoints Distributor as its exclusive distributor of the Products
for a term of two (2) years from the date of execution of this Agreement (the
"Initial Term"). The Initial Term of this Agreement may be renewed for
additional terms (each a "Renewal Term") by mutual agreement of the parties in
writing. The Initial Term together with all Renewal Terms is hereinafter
referred to as the "Term."
2. OBLIGATIONS OF DISTRIBUTOR
Distributor shall buy the Products from the Company and maintain a sufficient
staff to properly service the purchasers and prospective purchasers of the
Products and meet its other obligations hereunder. The Distributor further
agrees that it shall:
a. Use best efforts to professionally and actively promote and sell the
Products in the Territory.
b. Only sell the Products under the trademarks for the Products owned by
the Company.
c. Maintain sufficient inventories of the Products, at Distributor's
discretion, to enable Distributor to effectively satisfy demand for the
Products in the Territory.
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d. In distributing the Products in the Territory, comply with all
provisions of applicable laws, rules and regulations.
e. Cooperatively work with Company in matters relating to the marketing,
sales, forecasting, training, servicing, and corresponding with
customers.
f. Applied will market through the Corporate marketing department only the
asphalt and cement product release agents, form oils, curing agents,
lubricants and cleaners, which are used in the construction, paving and
similar industries and which are sold under the RCAI trademarks
`Alderox(R)', ASA-12(R), KR7(R), DCR(R), Paver Blend(TM) and TSR(R) in
Applied's industry marketing programs during the course of this
contract.
g. Not sell the Products through sub-distributors without the prior
written consent of the Company.
h. Not export the Products outside the Territory without the prior written
consent of the Company.
3. OBLIGATIONS OF COMPANY
The Company agrees that it shall:
a. Supply Distributor with the Product as requested.
b. Supply Distributor with sales and technical assistance
regarding the Product to support the sales efforts of
Distributor.
c. Supply Distributor with sales and promotional material from
time to time.
4. TERRITORY
Except for the relationships described on Schedule A (the "Existing
Relationships"), Distributor shall serve as the exclusive distributor of the
Products in the United State of America, Puerto Rico, Canada and Mexico (the
"Territory"). The Company hereby agrees that it shall not appoint any other
distributors to sell the Products in the Territory or expand the territory of
any Existing Relationship.
5. TERMS OF SALES
Each party hereby unconditionally agrees to abide by and be governed by the
terms and conditions of purchase, as set forth on Exhibit A, attached hereto and
the terms of which are incorporated herein.
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6. LIMITATION ON DISTRIBUTOR'S AUTHORITY
The Distributor under this Agreement is an independent contractor, buying and
selling for its own account. This Agreement does not give Distributor the right
to represent Company as an agent, legal representative, or employee of the
Company, nor does it constitute a joint venture or partnership with the Company.
7. TERMINATION
Either Company or Distributor may terminate this Agreement based upon the other
party's breach of the Agreement, by giving sixty (60) days prior written notice
to the other party of its intention to terminate and a reasonable opportunity to
cure the breach. Further either Company or Distributor may terminate this
Agreement without cause on ninety (90) days written notice to the other party.
Neither the Company nor the Distributor shall be liable for damages in the event
of a termination that is in accordance with this paragraph. Orders accepted by
Company prior to the date notice of termination is given shall be honored in
accordance with the terms and provisions of this Agreement. Distributor shall
pay to the Company all amounts owed hereunder within thirty (30) days following
the termination of this Agreement. Notice of termination shall be deemed to have
been duly given if delivered by hand or mailed certified or registered mail with
postage prepaid, as follows:
(1) If to the Company:
RCAI
00000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
(2) If to Distributor:
Applied Industrial Technologies, Inc.
Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention:_______________
In the event of termination of this agreement by the Company, the Company will
accept a one time stock return of salable standard merchandise without
restocking charge. Said returned stock shall be credited at the greater of the
Distributor's actual purchase price or the current price in effect at the time
of return.
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8. PATENTS/COPYRIGHTS
The Company shall indemnify, defend, protect and save Distributor, its
successors, customers and assigns harmless and indemnify it from and against all
claims, liability, cost, damages or expense (including, without limitation,
court costs and reasonable attorneys' fees), whether in law or in equity,
arising out of or existing because of the infringement or alleged infringement
of any patent, copyright or intellectual property right as a result of the
design, manufacture, sale or use of Products in the Territory.
9. COMPLIANCE WITH LAWS
The Company shall comply with all federal and state, and local laws regulations
and requirements relating to the product design, manufacture, labeling, duty to
warn; Hazard Communication Standard; all state and local right-to-know laws, and
all other Federal, state and local laws and regulations governing the design,
manufacture or sale of the Products in the Territory.
10. INSURANCE REQUIREMENTS
The Company shall at all times carry, at its own expense, one or more policies
of General Liability, Auto Liability and Workers' Compensation insurance and
shall provide Distributor with a certificate of insurance evidencing the
following amounts and types of coverage:
1. Commercial General Liability: $1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed
Operations Aggregate
2. Automobile Liability: $1,000,000 Combined Single Limit
of Liability
3. Workers' Compensation: Statutory Workers' Compensation,
including Employers Liability.
4. Evidence of Broad Form Vendors Endorsement
5. The insurance must be written with a carrier with an A.M. Best
rating of "A" or higher.
6. The Certificate of Insurance must name Applied Industrial
Technologies, Inc. as an "Additional Insured."
7. The certificate holder is to be "Applied Industrial Technologies,
Inc. Xxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxx 00000."
8. The certificate must indicate that the insurance will not be
canceled or modified unless thirty (30) days' prior written
notice has been given to Distributor.
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11. WARRANTIES
Each party warrants and represents that it has the full right and authority to
enter into this Agreement and that it is not aware of any impediment which would
inhibit its ability to perform the terms and conditions imposed on it.
To the extent Distributor makes any representations and warranties with respect
to any Product in addition to or other than the Company's Limited Warranty
accompanying delivery of the Products (a "Distributor Additional Warranty"),
Distributor shall be solely and exclusively responsible for handling any and all
claims that arise pursuant to such Distributor Additional Warranty, and
Distributor agrees to indemnify and hold harmless the Company for any and all
claims and any other expenses incurred by the Company, arising out of such
Distributor Additional Warranties
Notwithstanding anything to the contrary set forth herein, Distributor shall
have the right to all of Distributor's remedies and the Company's warranties to
the fullest extent provided under the Uniform Commercial Code, including, but
not limited to, warranties of merchantability and fitness, and such remedies and
warranties shall survive inspection, tests, acceptance and payment.
12. INDEMNIFICATION
The Company shall indemnify and hold Distributor harmless against all liability,
cost and expense (including, without limitation, Distributor's costs of testing
and inspection, court costs and reasonable attorney's fees) on account of claims
for injuries to persons or damage to property based in whole or in part upon any
act or omission of the Company, its agents, employees and subcontractors or as a
consequence of any breach of the Company's warranties, or arising under strict
liability/product liability laws. Further, the Company agrees to indemnify and
hold Distributor harmless against all liability, cost and expense (including,
without limitation, Distributor's costs of testing and inspection, court costs
and reasonable attorney's fees) incurred by Distributor in connection with or
related to any recall, inspection, testing, replacement or correction of the
goods or any part or equipment into which the goods are incorporated, which
results from or is related to, in whole or in part, a defect or alleged defect
in the goods.
Distributor shall indemnify and hold the Company harmless against all liability,
cost and expense (including, without limitation, the Company's costs of testing
and inspection, court costs and reasonable attorney's fees) on account of claims
for injuries to persons or damage to property based in whole or in part upon any
act or omission of Distributor, its agents, employees and subcontractors or as a
consequence of any breach of the Distributor's warranties or covenants.
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13. LIMITED LIABILITY
EXCEPT FOR LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE
ARISING FROM THE COMPANY'S ACTIONS OR OMISSIONS, IN NO EVENT WILL THE COMPANY'S
TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS,
FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE,
STRICT LIABILITY AND BREACH OF WARRANTY, EXCEED THE AGGREGATE NET AMOUNT PAID BY
DISTRIBUTOR HEREUNDER DURING THE TERM OF THIS AGREEMENT.
Distributor agrees that the limitations of liability and disclaimers of warranty
set forth in this Agreement will apply regardless of whether the Company has
tendered delivery of the Products or Distributor has accepted any Product.
Distributor acknowledges that the Company has set its prices and license fees
and entered into this Agreement in reliance on the disclaimers of liability, the
disclaimers of warranty and the limitations of liability set forth in this
Agreement and that the same form an essential basis of the bargain between the
parties.
14. GOVERNING LAW
This Agreement shall be governed by and construed under the laws of the State of
Ohio.
15. NO WAIVER
No waiver by any party to this Agreement, including the Exhibits hereto attached
or incorporated be reference, or a breach of any term or condition of any of the
foregoing shall be construed to operate as a waiver of any other or subsequent
breach of the same or of any other term or condition, unless otherwise expressly
provided.
16. ENTIRE AGREEMENT
This Agreement embodies all the promises, agreements and undertakings of the
parties and there are no verbal understandings between them. No change,
modification or variation to this Agreement shall be recognized except if in
writing signed by Distributor and the Company.
17. PROPRIETARY INFORMATION
Distributor acknowledges that it may be furnished with or may receive or have
access to information or material that relates to the Company's past, present or
future products, and marketing plans ("Proprietary Information"). Distributor
agrees to preserve the confidentiality of the Proprietary Information, whether
disclosed to it before this Agreement is signed or afterward. Distributor will
not disclose or disseminate the Proprietary Information for its own benefit or
of any third party. The previously stated obligations do not apply to any
information that is publicly known, is given to a party by someone else who is
not obligated to maintain confidentiality or a party has already developed prior
to the day this Agreement is signed, as evidenced by documents, or is required
by law to be disclosed. Within three (3) days after notice from the Company,
Distributor will return to the Company or destroy all copies of Proprietary
Information in tangible form. Despite any other provisions of this Agreement,
this Section will survive termination of this Agreement.
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18. ASSIGNMENT
This Agreement may not be assigned by either party without the consent of the
other except the Company may assign this Agreement without consent in the event
of a merger, acquisition or transfer of all or substantially all of its business
or assets relating to this Agreement. Upon such transfer, the Company will
provide prompt notice to Distributor.
19. FORCE MAJEURE
Neither party shall be liable to the other for any default hereunder, which is
not a payment default, which is due to cause beyond the control of the party in
default, including but not limited to the actions or inactions of any government
agency or instrumentality; breakdown of plant or machinery or shortages of
labor, fuel, transportation of materials, fires, floods, earthquakes, war, riots
or insurrections. If either party shall seek to rely on Force Majeure it shall
give written notice to the other indicating the details of the act which it
claims has put due performance of its obligations beyond its control. In
addition, the affected party shall exert all reasonable efforts to eliminate or
cure any Force Majeure event and to resume performance with all possible speed.
RCAI APPLIED INDUSTRIAL
TECHNOLOGIES, INC.
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
Printed Name Printed Name
President, Director
----------------------------------- -----------------------------------
Title Title
----------------------------------- -----------------------------------
Date Date
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EXHIBIT A
Terms of purchase shall be FOB RCAI production facilities and payment net 30
days. There is a 2% discount for payment of net 10 days.
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SCHEDULE `A'
Xxxxxxxx & Associates
0000 Xxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Accounts: APAC - Georgia, Florida, Alabama, Mississippi
Xxxxxxxx/Columbia - Florida, Georgia
Ajax Paving - Florida
XX Xxxxxxxx - Xxxxxxx
XxxXxx Technologies, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Accounts: Minority Contracts
U.S. Army Corps of Engineers, Louisiana
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