EXHIBIT 10.11
AIRTECH INTERNATIONAL GROUP, INC.
Distributor Agreement
This Agreement made on this date of February 19, 2001, by and between Airtech
International Group, Inc., having its principal place of business at 00000 Xxxxx
Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx, 00000, ("AIRTECH INTERNATIONAL GROUP, INC." or
"Airtech") herein, and W & B Service Co. Inc. having its principal place of
business in Dallas Texas, ("Distributor") herein, individually a "Party" and
collectively the "Parties" herein, mutually agree as follows:
1. Relationship
AIRTECH INTERNATIONAL GROUP, INC. grants and the Distributor accepts:
1.1. The right to purchase AIRTECH INTERNATIONAL GROUP, INC's. Commercial
Products brand name labeled as "Airsopure" to include Model S-999,
Model S-12, Model S-14, Model S-18 and Model "Titan III" directly
from AIRTECH INTERNATIONAL GROUP, INC., at the price and terms
outlined in the most current published AIRTECH INTERNATIONAL GROUP,
INC. Distributor price pages a current copy attached as Exhibit "A".
1.2 The right to stock, display, promote and aggressively sell the
Products to customers who are within the distributor's normal
marketing area. Subject to existing agreements as shown in attachment
"Exhibit B".
2. Distributor Duties and Obligations
The Distributor shall:
2.1. Arrange for Airtech training for Distributor owners, sales managers,
sales staff, sales associates and technical staff to occur within 45
days of signing this Agreement.
2.2. Develop and implement a proactive business plan, which Distributor
and Airtech International Group, Inc. will agree upon. This plan will
involve exposing the opportunity to the 5,000 client base of
Distributor.
2.3. Sign up sub-distributors and manufacturers representatives to sell
Products, using Airtech approved agreements..
2.4. Actively promote the Products to potential customers through periodic
mailings, promotions or other accepted marketing practices.
2.5. Represent and sell Airsopure air-filtration and purification products
in your territory
2.6. Assign the responsibility for the success of the Products to at least
one sales person who will be the specialist and champion for these
products.
2.7. Maintain a reasonable inventory of the Products including replacement
filters, to facilitate customer satisfaction.
2.8. Not sell products for shipment outside of the United States or
designated territory without prior approval of Airtech.
2.9. Comply with all federal, state, and local laws, regulations, statues,
etc., affecting the performance of business and this Agreement.
2.10. Follow up all leads to the disposition phase. This includes any and
all leads referred by Airtech International Group, Inc.
2.11. Keep copies of lead dispositions for review by Airtech International
Group, Inc.
3. AIRTECH INTERNATIONAL GROUP, INC. Duties and Responsibilities
AIRTECH INTERNATIONAL GROUP, INC. shall:
3.1. Support the distributor efforts through various marketing
initiatives, Product brochures, Product trend and technology
correspondence, in-house training and other efforts deemed beneficial
to the growth of the distributor business.
3.2. Furnish reasonable quantities of brochures and other support and
marketing materials at cost.
3.3. Provide technical and sales training and field sales support as
required.
3.4. Maintain reasonable levels of standard Product stock to facilitate
prompt deliveries.
3.5. Keep abreast of market and Product trends and inform the distributor
of new opportunities.
3.6. Notify Distributor of policy, pricing and other changes or practices
that may affect business, markets and the customer, etc., sixty (60)
days prior to the change, whenever practical.
3.7. Comply with all applicable federal, state and local laws,
regulations, statute, etc., affecting the performance of business and
this Agreement.
4. Cost and Expenses
Each party shall be solely responsible for all costs and expenses incurred
by it in performing its duties under this Agreement, including, but not
limited to, salaries, employee commissions, advertisements, promotions,
travel, delays, etc., unless otherwise stated and agreed to by all parties
involved.
5. Patents and Trademarks
Distributor agrees not to contest the validity of any licenses, patents,
trademarks and/or rights thereto now or hereafter used or claimed by
AIRTECH INTERNATIONAL GROUP, INC. and to notify AIRTECH INTERNATIONAL
GROUP, INC. promptly of any infringement thereof by others whenever such
acts come to the attention of the Distributor. Distributor agrees that all
information concerning the products and marketing tools of Airtech are the
Confidential Information of Airtech and they agree to treat them as
Confidential Information and used only for sales/marketing purposes.
Distributor also agrees to disclose Confidential Information only to those
employees, agents and sales contacts reasonably requiring same and only
for the above described purpose. The Distributor will apprise such persons
of their duty to protect such Confidential Information to the same extent
the Distributor is bound hereunder
6. Indemnification
Distributor shall defend, indemnify and hold harmless AIRTECH INTERNATIONAL
GROUP, INC., its representatives, agents and employees from and against all
claims, damages, losses and expenses arising out of the Distributor's sale
or use of the Products.
7. Sales Territory
7.1. The Distributor may market the Products within the geographical area
considered to be the Distributor's normal marketing area, ("Sales
Territory") including branch operations, unless otherwise indicated
as an appendix or note to this Agreement.
7.2. The exclusive Sales Territory is the United States and Canada.
7.3 The Distributor understands and accepts that other channels of
distribution including the Internet or catalogues may be utilized by
Airtech International Group, Inc. for the sale of Products within the
same Sales Territory, The sales territory will be the exclusive
territories of the Distributor, Airtech may engage additional
distributors for this Territory only as sub-distributors under the
direction of Distributor.
7.4 Airtech International Group, Inc. may expand Distributor's Sales
Territory based on area potentials, previous agreements, marketing
policy, and the effectiveness of current distributors. The
Distributor will not participate in the sales efforts of other
channels of distribution, or receive commission or payments of any
kind from sales to or by other channels of distribution.
7.5 The Distributor may sell Airtech Products through the Internet, and
may not use catalogues or direct sales efforts outside of the Sales
Territory. The sub-distributors set up by Distributor may not sell
Airtech Products through Internet web sites, within sub distributor
territory, nor use catalogues or direct sales, outside their sub-
territory.
8. Performance Expectations
8.1. A three year goal for net purchases of these Products, expected of
and agreed to by the Distributor, is as follows, the Parties agree
that the goals are for the sales
territory, the Parties further agree that these goals are subject to
adjustment if surrounding or similar territories are selling more
than the goals herein (on a per-capita basis) and/or other
distribution channels have exceeded the goals. The Parties agree that
any increase in goals is due to the territory granted to the
Distributor. If the Parties do not agree on adjusted goals, then the
Parties agree to an average of the three (3) goals decided by (1) a
Airtech distributor chosen by mutual agreement and (2) one each of
Airtech distributors chosen by each Party. Further, these revised
goals may be different for each separate sub-sales territory, and/or
each product group (consumer or commercial) and/or by
individual product.
Total 12 months ended
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Purchases of $4,000,000 Xxxxx 00, 0000
Xxxxxxxxx of $6,000,000 Xxxxx 00, 0000
Xxxxxxxxx of $8,000,000 March 31, 2004
8.2 The Distributor understands and accepts that if these
agreed upon goals or revised goals and/or sub goals by sub-sales territory
are not achieved, and it is determined by Airtech at its sole discretion that
the Distributor has not implemented the actions required to achieve these
goals, the following actions may be taken:
a) This Agreement as to the non performing Sales Territory may be
terminated by Airtech International Group, Inc. (see 9.2, c.).
b) This Agreement will continue and additional distributors or
distribution channels may be established within the Sales
Territory.
c) Taking any action or failure to take any action allowed under this
Agreement does not restrict Airtech from taking or not taking any
action in the future. It is not required for the three years to
conclude in order to invoke this paragraph.
9. Term and Termination
9.1. This Agreement shall be binding for a period of three years from the
date of execution and shall automatically renew and extend for
consecutive one year terms if notification to the contrary is not
given thirty (30) days before the anniversary date.
9.2. This Agreement may be terminated or modified as follows:
a) Prior to the end of the three-year period by either party without
cause, and without time to cure, upon ninety (90) days written
notice to the other party.
b) Immediately by AIRTECH INTERNATIONAL GROUP, INC. upon written
notice to Distributor in the event Distributor is adjudicated as
bankrupt, becomes insolvent or makes an assignment for the benefit
of creditors or if a principal owner is convicted of a felony that
would adversely reflect on Airtech.
c) By either party upon sixty (60) days written notice if the other
party is in material breach of any of the terms of this Agreement
or any joint business plans or Distributor's failure to reach
agreed upon market penetration goals
measured by annual purchases of AIRTECH INTERNATIONAL GROUP, INC.
products.
d) In the event of termination of this Agreement by either party,
AIRTECH INTERNATIONAL GROUP, INC. shall have the option to
repurchase all Products purchased hereunder of current design,
unused and in saleable condition, which are in Distributor's
inventory at the time of termination. If the termination is by
AIRTECH INTERNATIONAL GROUP, INC., AIRTECH INTERNATIONAL GROUP,
INC. shall pay the original purchase price as substantiated by the
invoice or, if an invoice is unavailable, the published price
prevailing at the time of manufacture. If the termination is by
the Distributor, a handling charge of fifteen percent (15%) shall
be deducted from the purchase price.
e) Upon termination, Distributor shall return all books and records
of Airtech International Group, Inc. to Dallas headquarters via
prepaid freight.
10. Additional Provisions
10.1. Changes in Design. AIRTECH INTERNATIONAL GROUP, INC. may make
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reasonable changes of any kind without notice and deliver revised
designs or models of the Products against any order accepted by
AIRTECH INTERNATIONAL GROUP, INC. AIRTECH INTERNATIONAL GROUP, INC.
will not be responsible to the Distributor in any way for any
inventory in the Distributor's possession of prior models of the
Product or manufactured under prior design or specifications.
10.2. Force Majeure. AIRTECH INTERNATIONAL GROUP, INC.and Distributor
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shall not be liable for any delay in the delivery or sale of any
Products if such delay is due to any cause beyond the reasonable
control of AIRTECH INTERNATIONAL GROUP, INC. or Distributor. In the
event of any such delay, the dates for performance by AIRTECH
INTERNATIONAL GROUP, INC. or Distributor shall be extended for a
period equal to the time lost by reason of such delay.
10.3. Distributor Not Agent. Distributor is an independent contractor and
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shall not be considered in any respect an agent or representative of
AIRTECH INTERNATIONAL GROUP, INC. and the Distributor shall not
represent or hold out itself or its agents or representatives as the
agents or representatives of AIRTECH INTERNATIONAL GROUP, INC., nor
shall it allow others to do so.
10.4. Assignability. This Agreement may not be assigned or otherwise
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transferred by the Distributor without prior written consent by
AIRTECH INTERNATIONAL GROUP, INC. Any purported attempt to assign or
transfer this Agreement without AIRTECH INTERNATIONAL GROUP, INC.'s
prior written consent shall be null and void and shall, at Airtech
International Group, Inc.'s option immediately terminate this
Agreement.
10.5. Confidentiality. The Parties agree to concurrently enter into a
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binding Confidentiality Agreement.
10.6. Change in Control. Transfer of a controlling interest in
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Distributor to a party not in control at the time of execution of
this Agreement shall be deemed an assignment without Airtech
International Group, Inc.'s consent.
10.7. Use of Trade Name. The Distributor shall not use in it's corporate,
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firm or individual name, or allow to be used by others in their
corporate, firm or individual names, insofar as the Distributor has
any power to prevent such use, the words Airtech International
Group, Inc., Airsopure, and/or any other name, logo or trademark
adopted by AIRTECH INTERNATIONAL GROUP, INC. for products or service
or any words or names or combinations of words or names closely
resembling any of them, without Airtech permission, which is hereby
given. Airtech reserves the right to request that the words
AIRSOPURE be removed from the Distributor's trade name at its sole
discretion.
10.8. Warranty. The warranty for the Products is set forth in the Product
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Literature and Installation, Operation and Maintenance manuals.
THE WARRANTY SET FORTH IN THE PRODUCT LITERATURE AND INSTALLATION,
OPERATION AND MAINTENANCE MANUALS CONSTITUTES THE ENTIRE WARRANTY OF
AIRTECH INTERNATIONAL GROUP, INC. WITH RESPECT TO THE PRODUCTS SOLD
HEREUNDER AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR ANY WARRANTY AGAINST INFRINGEMENT, ALL OF
WHICH ARE HEREBY EXPRESSLY DISCLAIMED. DISTRIBUTOR SHALL NOT CHARGE
AIRTECH INTERNATIONAL GROUP, INC. FOR ANY WARRANTY LABOR.
10.9. Disclaimers. IN NO EVENT SHALL AIRTECH INTERNATIONAL GROUP, INC. BE
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LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES RESULTING FROM ANY PERFORMANCE OR FAILURE TO PERFORM UNDER
THIS AGREEMENT, OR ANY PURCHASE ORDER ISSUED HEREUNDER, OR THE USE
OR PERFORMANCE OF THE PRODUCTS SOLD HEREUNDER, WHETHER DUE TO BREACH
OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE.
10.10. Notices. Any notice required or permitted hereunder shall be
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sufficient if sent by first-class mail, postage prepaid to the other
party at the address specified herein, except that any notice of
termination or other pertinent responsibilities, may be by certified
mail, return receipt requested. Either party may designate a new
address for the purposes of notice by certified mail, return receipt
requested.
10.11. Governing Law. This Agreement shall be construed and the relations
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between the parties determined in accordance with the laws of the
State of Texas in the County of Dallas.
10.12. Entire Agreement. This Agreement contains the entire agreement
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between the parties and supersedes all prior agreements,
representations, promises and understandings, whether written or
oral, which have been made in connection with the subject matter
hereof. Any terms and conditions on any purchase order or
other document issued by the Distributor shall be inapplicable to
any sale of Products pursuant to this Agreement.
10.13. Binding Effect. This Agreement shall be binding upon, inure to the
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benefit of, and be enforceable by and against the parties hereto and
their respective heirs, successors, personal representatives, legal
representatives and assigns.
10.14. Captions. The headings used in this Agreement are for illustrative
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purposes only, the wording in the paragraphs will control.
10.15. Arbitration. The Parties agree to submit any disputes arising from
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this Agreement to binding Arbitration in lieu of other legal means
of resolutions. The Parties agree that the Arbitration will be held
in Dallas Texas under the control of the American Arbitration
Association or equivalent, if not available.
ACCEPTED BY: (DISTRIBUTOR) on date first written above.
W & B Service Co. Inc.
Xx. Xxxxxx X. XxXxxxxx
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Print or Type Name Title
/s/ Xxxxx XxXxxxxx 2-19-01
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Signature, President Date
Notice to:
APPROVED BY: AIRTECH INTERNATIONAL GROUP, INC. on date first written above.
X. X. Comu, Address for notice:
CEO 00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
/s/ X.X. Comu 2-19-01
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Signature Date
