Purchaser Agreement
This
Purchaser Agreement dated this 1st day, November, 2006 by and between HydroFlo
Water Treatment, Incorporated, a North Carolina corporation located at 0000
Xxxxxxxx Xxx. Xxxx, XX 00000 (the “Company”) and Shine Holdings, Inc. a
North Carolina corporation located at 0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx,
XX
00000 (the “Purchaser”).
RECITALS
A.
The Company is engaged in the manufacture and 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 Purchaser engages to sell such Products to the end-users listed on the
attached Schedule
B
in
connection with those end-users’ operations located in the geographic areas also
listed on the attached Schedule
B,
as the
same schedule may be hereafter amended by the mutual consent of the parties
(the
“Customers”); and
C.
The Company is willing to manufacture and supply Products to the Purchaser
and
to appoint the Purchaser as a distributor of the Products on the terms and
conditions set forth herein;
NOW
THEREFORE, in consideration of the premises and the mutual promises and
covenants set forth herein, the parties hereby agree as follows:
1. DISTRIBUTION
RIGHTS.
Subject to the terms and conditions set forth herein, the Company hereby
appoints the Purchaser as a distributor of the Products to the Customers
for the term of this Agreement as provided in Section 2 below. The
Purchaser 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 right or license to
manufacture the Products are granted to the Purchaser by this
Agreement.
2. TERM.
This agreement shall commence on October 01, 2006 and, unless sooner terminated
as provided in Section 7, shall continue in full force and effect for a period
of one (1) year (the “Term”). This agreement shall be self renewing unless
otherwise terminated.
3. DUTIES
OF THE PURCHASER.
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(a)
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The
Purchaser shall use his best efforts to place the Products in operational
use.
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(b)
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Guaranteed
Units to be purchased according to the following schedules and
minimums
and exact pricing and equipment to be determined by site conditions
to be
described in a site characterization form
(attached):
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(.1)
Year
one beginning 10/01/06: Purchaser warrants a guaranteed minimum purchase
for use in Shine operation program of 10 systems, 100 GPM or larger Prior
to
9/30/07.
(.2)
Year two beginning 10/01/07: Purchaser warrants a guaranteed minimum
purchase for use in Shine operation program of 12 (twelve) systems 100 GPM
or
larger prior to 9/30/08.
(.3)
Year three beginning 10/01/08: Purchaser warrants a guaranteed minimum purchase
for use in Shine operation program of 15 systems 100 GPM or larger prior
to
9/30/09.
(.4)
Year four beginning 10/01/09: Purchaser warrants a guaranteed minimum purchase
for use in Shine operation program of 20 systems 100 GPM or larger prior
to
9/30/10.
(.5)
Year five beginning 10/01/10: Purchaser warrants a guaranteed minimum purchase
for use in Shine operation program of 25 systems, 100 GPM or larger prior
to
9/30/11.
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(c)
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The
Purchaser shall comply with all appropriate federal, state, county
and
local laws, rules and regulations pertaining to this Agreement
and/or the
acquisition, receipt, holding, selling, distribution or advertising
of the
Products.
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(d)
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Minimum
quantities ordered begin with October 31, 2006 and continue
monthly for the next twelve months ending September 2007. Failure to
adhere per the terms specified herein or failure to order during
any three
consecutive months shall be considered breach of contract with
remedies
described in paragraph 7.
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(e)
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The
Purchaser 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/or the acquisition, receipt,
holding,
selling, distributing or advertising of the
Products.
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(f)
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The
Purchaser shall be solely responsible for the declaration and payment
of
all local, state and federal taxes as may accrue because of the
Purchaser's activities in connection with this
Agreement.
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(g)
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The
Purchaser shall maintain as confidential and proprietary all non-public
information and details concerning (i) this Agreement per the attached
confidentiality and non-disclosure agreement; (ii) the Products
and (iii)
the Company’s Marketing and Compensation Program. Notwithstanding
the foregoing, either party to this Agreement the Purchaser may
disclose
any otherwise confidential information if the disclosure is required
by a
court or governmental authority.
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(h)
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The
Purchaser shall exercise due diligence to keep the Company informed,
through regular written reports, with respect to any observations
or
complaints received from any of the Customers with regard to any
of the
Products.
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(i)
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The
Purchaser shall bear its own costs and expenses incurred in performing
its
obligations hereunder.
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(j)
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All
press related to HydroFlo Inc or its portfolio companies shall
be reviewed
and approved by HydroFlo Inc prior to being
released.
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(k)
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Special
orders of smaller units less than 100 GPM are available upon request
but
will not effect miminum order size.
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(l)
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A
10% discount will be granted for volume purchases and the adjustment
will
be made at the end of the agreement term on a yearly
basis.
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DUTIES
OF THE COMPANY.
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(a)
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The
Company shall design systems appropriately to meet the needs for
station
based on conditions provided by the purchaser.
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(b)
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The
Company shall be involved in the start-up of the system and training
of
the operations personnel.
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(c)
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The
Company will make available names and telephone numbers of all
PLUS system
owners.
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(d)
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The
Company will make available any and all “white” papers customarily written
about the PLUS system.
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4.
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ORDERS
AND DELIVERY.
The Purchaser shall qualify submitted purchase orders for Products
signed
by a duly authorized officer and containing 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 Company 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.
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5. TERMS
OF SALE AND PAYMENT.
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During
the Term of the contract, the Purchaser shall receive net pricing
for
each
Product, less shipping costs. The Company shall furnish
any revised
price list to the Purchaser with a 90 day advanced notice of
price
increases. The list price shall be adjusted from time to time
at the
discretion
of the Company.
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(b)
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All
equipment produced by the company is sold f.o.b. the company’s office in
Apex, NC.
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(c)
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The
Customer shall pay for the Products in U.S. Currency by wire transfer
or
other payment according to the following payment
plan:
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(i)
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Thirty
three percent (33%) due upon order.
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(ii)
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Thirty
three percent (33%) due upon design completion and component
order.
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(iii)
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Remaining
Balance will be due prior to
shipment.
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(.2)
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Freight
charges shall be billed COD to the
purchaser.
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6. LIMITED
TRADEMARK LICENSE.
During the Term, the Company grants to the Purchaser a limited, non-exclusive,
royalty-free right and license to use, but not to register the name and
trademark “HydroFlo Water Treatment.” Except as provided in this Section 6, the
Purchaser agrees not to utilize the HydroFlo logo, or HydroFlo Water Treatment
trade name or trademarks in any way or to name executives, employees, members
or
affiliates in any advertising format or medium without the prior express
written
consent of HydroFlo Water Treatment, Inc.
7. TERMINATION.
In the event the Purchaser breaches any provision of this Agreement, the
Company
may terminate this Agreement immediately and shall have the right to seek
all
other available remedies. Upon the termination of this Agreement, the
Company will complete the manufacture of all in-process Products subject
to a
Confirmed Purchase Order and the Purchaser completing the terms stated in
5. C.
of this agreement, as provided in Section 4 and the Purchaser will purchase
the
same at the prices then in effect.
8. STATUS
OF THE Purchaser.
The
Purchasers duly organized and is qualified and has all consents, permits
and
authorizations required to perform its obligations under this Agreement.
9. RELATIONSHIP
OF THE PARTIES.
The Purchaser 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 purchaser 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 ventures, 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 Purchaser.
10. AMENDMENT.
This Agreement may only be amended by mutual written agreement of the
parties.
11. 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.
12. BINDING
AGREEMENT; GOVERNING LAW AND VENUE.
The Purchaser acknowledges that it has read and understands this Agreement
and
that this Agreement shall become binding upon the Purchaser upon execution
by
both parties. This Agreement shall be governed by the laws of the State of
North Carolina. It is expressly agreed by the Parties that 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
under arbitration to be conducted in compliance with the rules of the American
Arbitration Association in Raleigh, North Carolina.
13. 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.
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If
to the Company:
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If
to the Purchaser:
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HydroFlo
Water Treatment, Inc.
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Shine
Holdings, Inc.
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0000
Xxxxxxxx Xxx.
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0000
Xxxxxxx Xxxxxxx, Xxxxx 000
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Xxxx,
XX 00000
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Xxxx,
XX 00000
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Attn
Xx. Xxx Xxxxxx
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Attn:
Xx. Xxxxx Xxxxxxx
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Telephone:
000-000-0000
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Telephone:
000-000-0000
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Facsimile:
000-000-0000
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Facsimile:
000-000-0000
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14. 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.
15. 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.
16. DISCLAIMER
OF WARRANTIES; LIMITATION OF LIABILITIES.
(a) THE
COMPANY PROVIDES ITS EQUIPMENT FOR THE PURPOSE OF AERATION TO WATER AND
WASTEWATER, HOWEVER, SINCE THE CHARACTERISTICS OF WATER AND WASTEWATER ARE
HIGHLY VARIABLE AND THOSE CHARACTERISTICS AFFECT THE ABILITY OF OXYGEN TO
ENTER
AND REMAIN IN THE WATER AND WASTEWATER, THE COMPANY SHALL ONLY WARRANT THE
MATERIALS AND WORKMANSHIP OF THE EQUIPMENT AND THE VOLUME OF AIR INTRODUCED
INTO
THE WATER AS PROVIDED IN CURRENT AND FUTURE PRODUCT DOCUMENTS. NO OTHER
WARRANTY IS EXPRESSED OR IMPLIED FOR THE MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, FOR ANY OF
THE
PRODUCTS.
(b) THE
COMPANY SHALL IN NO EVENT BE LIABLE, WHETHER IN CONTRACT, TORT, OR ON ANY
OTHER
BASIS, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOSS
OF
PROFITS OF ANY KIND SUSTAINED BY THE PURCHASER, OR BY ANY PERSON DEALING
WITH
THE PURCHASER, IN CONNECTION WITH THE PRODUCTS. THE COMPANY 'S LIABILITY
FOR ANY CLAIM OF ANY KIND (INCLUDING, WITHOUT LIMITATION, CLAIMS BASED UPON
ANY
EXPRESS WARRANTY CONTAINED HEREIN AND CLAIMS BASED UPON ANY WARRANTY IMPLIED
BY
LAW), SHALL BE LIMITED, AT THE COMPANY 'S OPTION, TO REPLACEMENT OF THE PRODUCTS
OR THE DIFFERENCE BETWEEN THE INVOICED AMOUNT AND THE MARKET PRICE OF THE
PRODUCTS AT THE TIME AND PLACE SPECIFIED IN THE PURCHASE ORDER OR THE RETURN
TO
THE PURCHASER OF THE AMOUNT PAID BY THE PURCHASER, AND THE PURCHASER EXPRESSLY
WAIVES ANY RIGHT IT MIGHT HAVE TO ANY OTHER MEASURE OF DAMAGES, STATUTORY
OR
OTHERWISE.
(c) All
warranty disclaimers contained herein are intended to comply with
applicable
law and shall be enforced to the fullest extent possible under applicable
law. To the extent that any warranty disclaimer is deemed invalid under
any law, which may be applied, any related non-disclaimable warranties, whether
express or implied, shall be limited in duration to a period of six (6)
months.
(d) System
component warranties for pumps, valves, fittings, compressors, oxygen generation
systems, and macerators shall be pass thru warranties provided by the OEM
to the
Purchaser.
(e) Neither
the Purchaser, nor any
agent, purchaser nor designee of the Purchaser shall make any warranties,
representations or guarantees to any person, either orally or in writing,
in the
name of or on behalf of the Company without the Company's prior written
consent.
(f) Any
action for breach of this Agreement or for breach of any warranty, express
or
implied, of the Company shall be commenced within one (1) year from the date
of
the delivery of the Products.
IN
WITNESS WHEREOF, the parties hereto, through their duly authorized officers,
have executed this Agreement as of the date first written above.
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HydroFlo
Water Treatment, Inc.
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Company Shine Holdings, Inc. | ||
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By:
/s/ X X Xxxxxx
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By:
/s/ Xxxxx X Xxxxxxx
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Name:
X X Xxxxxx
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Name:
Xxxxx X. Xxxxxxx
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Title:
COO
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Title:
CEO
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HydroFlo
Inc
By:
/s/ Xxxxxx X Xxxxx III
Name:
Xxxxxx X. Xxxxx III
CEO
Schedule
A
Products
Represented
HydroFlo
Plus System
Schedule
B
Shine
Agreement
Geographic
Territories included for sales to Municipalities and Industrial
accounts.
Unlimited
