EXCLUSIVE SALES
AND DISTRIBUTORSHIP AGREEMENT
THIS EXCLUSIVE SALES AND DISTRIBUTORSHIP AGREEMENT ("Agreement") is
made as of the 7th day of February, 1997, by and between BIOSHIELD TECHNOLOGIES,
INC., a Georgia corporation having a place of business at 0000 Xxxx Xxxxxxxx
Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000 ("Supplier"), and CONCRETE MICROTECH, INC.,
a Georgia Corporation having a place of business at 0000 Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxx 00000. ("Purchaser").
W I T N E S S E T H:
WHEREAS, Supplier has developed significant know-how and proprietary
technology in connection with antimicrobial and biostatic products; and
WHEREAS, Supplier desires to appoint Purchaser as its sole and
exclusive Purchaser for sales of the product designated in para: 1 attachment II
and distributor for the use, sale and marketing of said products in the concrete
industry, and Purchaser is willing to accept such appointment from Supplier on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and other good and valuable consideration, the receipt
and adequacy of which hereby are acknowledged, the parties hereto agree as
follows:
DEFINITIONS.
(1) The following terms shall have the following meanings:
"Affiliate" shall mean, with respect to any Person (defined below), a Person
directly or indirectly controlling, controlled by or under common control with,
such Person. For this purpose, control of a corporation or other business entity
shall mean direct or indirect beneficial ownership of thirty percent (%30) or
more of the voting or equity interest in such entity.
"Confidential Information" shall mean all non-public trade secrets, proprietary
technology, know-how, or other proprietary business or technical information of
a party hereto or an Affiliate of it heretofore or hereafter disclosed to any
party or its Affiliates, but shall not include any information or document that
(i) is or becomes in the public domain other than as a result of a disclosure by
a party or an Affiliate of it to whom such information was supplied pursuant to
this Agreement or any other agreement restricting the use or disclosure of such
information or documents (other than a disclosure approved in writing by the
party who, or whose Affiliate, supplied the information), (ii) was or becomes
lawfully available to the party of its Affiliate to whom such information was
supplied otherwise than by another party hereto, or (iii) was generated
independently by the party or its Affiliate to whom such information was
supplied without reference to non-public information furnished by another party
hereto or an Affiliate of it.
"Field of Use" shall mean the use of the Property in the concrete industry.
"Products" shall mean Supplier's total line of antimicrobial
products which uses Supplier's Property, or at any time during the Term (as
defined below) of this Agreement, formulated, conceived, processed, sold,
offered for sale, treated, promoted, blended, manufactured or otherwise handled
by Supplier for the designated end use in accordance with Attachment II, and
such additions or deletions thereto as the parties may hereafter mutually agree.
"Property" shall mean the Supplier's antimicrobial technology
disclosed in any of its U.S. Patent Applications and related foreign patent
applications, together with Supplier's antimicrobial technology being developed
for which no patent application has been filed or for which no patent has
issued, and all of Supplier's technical know-how and all enhancements,
improvements and modifications to such antimicrobial technology that are
developed or otherwise acquired by the Supplier before and during the Term of
this Agreement for the exclusive end use application in accordance with
Attachment II.
"Person" shall mean a natural person, corporation, business
trust, estate, trust, partnership, association, joint venture, government,
governmental subdivision or agency, or other legal or commercial entity.
"Territory" shall mean the entire world.
(2) Other Terms. Other capitalized terms shall have the meanings
ascribed to them elsewhere in this Agreement.
EXCLUSIVE SALES AGREEMENT.
(1) Grant of Right. Supplier hereby grants to Purchaser and its
Affiliates an exclusive right to use, sell and market Products using the
Property, now and hereinafter developed by the Supplier, in the Field of Use in
the Territory during the Term of this Agreement as long as reasonable efforts
and volume minimums are maintained in accordance with Attachment II.
(2) Notification. Purchaser shall notify Supplier promptly of the
circumstances of any unauthorized possession, manufacture, sale, or use or
knowledge of any part of the Property.
(3) Implementation by Purchaser.
Information. Supplier agrees to cooperate with Purchaser to provide Purchaser
and its Affiliates with such information necessary to utilize the Property.
Start Up and Marketing Assistance. Supplier will in accordance with Article
(4)(A) herein assist Purchaser as necessary to effectively carry out its
obligations under this Agreement. Supplier will, upon Purchaser's request and on
terms and conditions mutually satisfactory to Supplier and Purchaser, from time
to time
provide Purchaser with technical support, as may be necessary for Purchaser to
effectively market the Products (such assistance including, but not limited to,
assistance in the creation of brochures, assistance in sales presentations, and
like matters).
(4) Marketing Assistance.
(a) Marketing Assistance Fee. In consideration of the rights
granted in Section B(3)(b) hereof, Purchaser agrees to pay Supplier marketing
fee of $50,000.00, payable over twelve (12) months of the execution date hereof.
(b) Royalties. Supplier shall develop a Property Price List
which shall set for the sales price of the Products to be purchased by
Purchaser. An initial Property Price List is contained in Attachment II. Such
prices include all royalty fees to be paid by Purchaser, and no additional
royalty fee shall be paid by Purchaser at any time. Supplier may increase or
decrease its prices on the Property Price List, upon reasonable notice to
Purchaser.
(5) Disclosure of Information.
(a) Sharing of Information. The parties agree to disclose such
information to one another to the extent necessary to carry out the purposes of
this Agreement; provided, however, that no party shall be required to make any
disclosure of any information in contravention of any legal obligation.
Purchaser shall provide to Supplier, upon Supplier's written request, copies of
any and all data and written reports relating to the Property, in reasonable
detail to permit Supplier to continue research and development of the Property.
(b) Confidentiality. For the Term of this Agreement and a
period of ten (10) years from the date of termination or expiration of this
Agreement for any reason whatsoever, and with respect to Confidential
Information which may be deemed a trade secret, for so long as such Confidential
Information remains a trade secret, each party hereto shall maintain as
confidential all Confidential Information heretofore or hereafter disclosed by
the other party, and shall not, directly or indirectly, disclose any such
Confidential Information to any Person, corporation or entity other than those
employees, agents, advisers, suppliers or consultants of such party whose duties
justify the need to know such Confidential Information and then only on the
basis of a clear understanding by such employee, agent, supplier, or consultant
of their obligation to protect the confidentiality of such Confidential
Information and to restrict the use of such Confidential Information. The
recipient party shall be liable hereunder for any unauthorized disclosure by
such employees, agents, advisers, suppliers or consultants. Moreover, neither
party shall use, directly or indirectly, for its benefit or the benefit of any
Affiliate or other person, corporation or entity any such Confidential
Information except for the purpose specified herein. If a party hereto
determines that a disclosure is required by law, that party shall give the other
party supplying such Confidential Information prior written notice in order to
provide such party an opportunity to seek an injunction or otherwise attempt to
keep such information confidential. Except as provided otherwise herein, at the
written request of the party supplying Confidential Information, the other party
shall destroy or return any and all such data and information without retaining
copies when this Agreement expires or terminates.
Disclosure. Marketing the Property in the Field of Use within the Territory
during the Term of this Agreement by Supplier without the express written
consent of the Purchaser is prohibited.
(6) Representation and Warranties: Indemnification.
(a) Representations and Warranties. Supplier represents and
warrants that (a) possesses the right to grant the rights hereunder.
(b) Indemnification. Supplier agrees to indemnify Purchaser
and its Affiliates against liabilities, losses, costs, damages and expenses
(including, without limitation, court costs and attorneys' fees) relating to any
action against Purchaser arising from a breach of the warranty in Section
B(5)(d) below, provided, however, such infringement was not caused by
Purchaser's or its Affiliates' enhancements, improvements, or modifications to
the Property or by Purchaser's or its Affiliates' acting in a manner
inconsistent with this Agreement, and provided Purchaser or its Affiliates, as
applicable, has promptly notified Supplier with respect to such claim. Failure
of Purchaser or its Affiliates to so notify Supplier promptly of any such claim
shall not relieve Supplier of its indemnification obligation hereunder, except
to the extent such failure has prejudiced or impeded Purchaser's ability to
defend or settle such claims.
(c) Infringement Action. If any notice is given to Purchaser,
or any suit is brought against Purchaser by a third party, charging infringement
of a patent due to the using or selling of the Property, Purchaser shall give
Supplier prompt written notice thereof. The parties shall promptly thereafter
discuss the course of action to be followed and shall attempt to decide by
written agreement to either (i) make modifications which will avoid infringement
of such patent without significantly affecting the economics of Purchaser's
operations, or (ii) accept a license for Purchaser under such patent, or (iii)
contest the alleged infringement. If the alleged infringement is contested,
Supplier shall have control of any such litigation through counsel of its
choice. Purchaser shall cooperate with Supplier in any litigation arising out of
such alleged infringement, and shall, upon reasonable notice, make available its
employees, officers, directors or managers to testify when requested by Supplier
and shall make available to Supplier all relevant papers, records, information,
data and the like.
Limitations on Liability Relating to Property. EXCEPT FOR THE EXPRESS WARRANTIES
CONTAINED IN THIS AGREEMENT, SUPPLIER MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, IN FACT OR IN LAW, RELATING TO THE PROPERTY, ALL OF WHICH
HEREBY ARE EXPRESSLY DISCLAIMED.
Prior Disclosure. Except for pilot study information and information in any
issued patent, Supplier has not disclosed the Property to any other party in the
Field of Use.
EXCLUSIVE DISTRIBUTORSHIP AGREEMENT.
Appointment of Distributor: Products. Supplier hereby appoints
Purchaser, for the Term hereof, as sole and exclusive distributor for the use,
sales and marketing of Supplier's Products in the Field of Use in the Territory.
Supplier shall not sell or cause to be sold, directly or indirectly, or appoint
any other distributor or agent for the sale of such Products in the Territory as
long as reasonable efforts are maintained and volume projections are met in
accordance with Attachment II.
(2) Obligations of Supplier. Supplier agrees:
(a) In addition to ss. (B)(4)(b) above, to assist Purchaser in
the performance of this Agreement by providing technical support and information
for the training of salesmen and the development of advertising and marketing
literature, and otherwise cooperating fully with Purchaser's representatives
with regard to sales and marketing.
(b) To make deliveries to Purchaser or to Purchaser's
customers in the Territory from various manufacturing and/or shipping locations
maintained by Supplier.
Obligations of Purchaser. Purchaser agrees:
(a) To use best efforts in promoting the sale of Products, to
maintain an effective sales force, and to provide prompt delivery service.
Purchaser shall annually agree with Supplier on sales goals for Purchaser, which
are to be used in part to evaluate Purchaser's performance.
(b) Not to make any representations or warranties concerning
Products, except with the express prior written authorization of Supplier.
(c) To provide semi-annual sales forecasts and such other
reports as Supplier may reasonably request form time to time.
Shipments. Times and amounts of individual shipments will be
established by Purchaser's purchase orders. Supplier will make shipment in steel
or plastic drums or containers or in tank truck or tank cars, as requested by
Purchaser and agreed by Supplier, in accordance with Supplier's packaging and
transportation terms in effect at time of shipment. Title to and risk of loss of
Products shall pass to Purchaser at point of shipment.
(5) Price. Purchaser agrees to pay for all Products shipped by Supplier
hereunder the prices shown on Supplier's price lists in effect at the time of
shipment, and in accordance with Attachment II, at the terms and less volume or
other discounts as agreed to by the parities. Price reductions, including, but
not limited to, volume and other discounts, shall be effective immediately upon
announcement. All sales terms are FOB (as defined in INCOTERMS 1990, ICC
Publication No. 460) Supplier's manufacturing facility unless otherwise noted.
For shipments outside of the United States, title to Products will pass to
Purchaser immediately upon entering the foreign country of destination.
(6) Payment Terms. Purchaser agrees to pay Supplier's invoices within
forty-five (45) days from the date thereof. If Supplier shall reasonably be
concerned with respect to the Purchaser's financial responsibility, Supplier
shall first provide written notice of such concerns to Purchaser, together with
a request for assurances by Purchaser that invoices shall be paid in accordance
with this Agreement. Should Purchaser fail to provide such assurances to
Supplier within fifteen (15) days after receipt of the request, Supplier shall
have the right, apart form any other legal remedy, to require Purchaser to pay
for Products in advance as ordered, and to cancel orders or delay shipments to
Purchaser or its customers for which no payment has been made, until payment is
made.
(7) Representations and Warranties: Indemnification.
(a) Supplier warrants to Purchaser that the Products delivered
by it pursuant to this Agreement shall be in accordance with the Supplier's
product specifications and other technical information as published from time to
time.
(b) Supplier shall indemnify and hold harmless Purchaser for
any and all costs, liabilities, obligations and expenses (including attorneys'
fees) incurred by Purchaser as a result of Supplier's breach of any warranty in
respect of the Products.
(8) Limitations on Liability Relating to Products. EXCEPT FOR THE
EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, SUPPLIER MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, RELATING
TO THE PRODUCTS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
(9) General Terms and Conditions.
Term. This Agreement shall be perpetual (the "Term"). This
Agreement may be terminated by each party hereto in the event the other party
fails in any material respect to perform its obligations hereunder, and such
failure is not corrected within thirty (30) days of receiving written notice of
such failure from the terminating party. Upon termination for any reason, this
Agreement shall continue in force and effect as necessary for the parties hereto
to perform their respective obligations to third parties (existing at the time
of such termination) relating to this Agreement. If either party shall become
insolvent or make an arrangement with creditors or have
bankruptcy proceedings instituted by or against it (to the extent permitted by
applicable laws) this Agreement shall terminate immediately.
(b) Advertising, Etc.Nothing in this Agreement shall be
construed as conferring to Purchaser a right to use in advertising, publicity,
or otherwise any trademark, trade name, trade dress, or trade designation of
Supplier without Supplier's prior written consent.
(c) No Partnership, Etc. Purchaser shall be for all purposes
an independent contractor, and not an employee or agent of Supplier. Purchaser
assumes full responsibility for, and will hold Supplier harmless against, all
payments required by any authority for, to, or on or behalf of Purchaser's
employees or agents. Purchaser is not authorized or empowered in any manner to
accept service or other notice addressed to it in any manner upon Supplier or to
submit Supplier to the jurisdiction of any court or government agency whatever.
(d) Force Majeure. Failure of Supplier or Purchaser to order,
to take, or to make any one or more deliveries, if occasioned by any cause
beyond the reasonable control of either of said parties of any nature,
character, or kind whatsoever, shall not affect the remainder of this Agreement,
nor subject the one so failing to any liability to the other because thereof.
Without limiting the liability of the foregoing language, such causes shall
include fire, storm, flood, acts of God, war, explosion, sabotage, strikes or
other labor trouble, embargo, expropriation of plant, Product and/or raw
materials in whole or in part by Federal or State authorities, acts of the
Federal Government, any State or local Government, or any agency thereof, and
any other like occurrence causing extreme interference with the production or
transportation of Products.
(e) Information. Purchaser agrees that it will supply to all
of its customers Product information as provided by Supplier. Purchaser will
rely solely on Supplier's representations regarding the safety, strength,
storage, environmental and other aspects of the Products. Such information
includes material safety data sheets, product specification bulletins and other
information appropriate to the customer's specific operations. Purchaser agrees
to place Supplier-approved labels on drums filled by Purchaser on Purchaser's
storage tanks and to recommend that its customers for Products use such labels
on all of their drums and storage vessels. Supplier will also supply additional
information for safe and legal shipping as needed by the Purchaser's customers.
(f) Reconsignment. If shipment is made in tank cars or tank
trucks furnished by Supplier, Purchaser will unload said shipments promptly
after placement by carrier, and no reconsignment of Supplier's tank cars or tank
trucks shall be made by Purchaser without the written consent of Supplier.
(g) Insurance. Supplier shall maintain appropriate general and
product liability insurance in respect of the sale of the Products in North
America and Mexico in an amount to be agreed upon by the Parties. Supplier shall
cause Purchaser to be named a co-insured on such
insurance policy and shall, at the request of Purchaser, provide certificates of
insurance to such effect.
(h) Taxes. Each party shall be responsible for income,
franchise, gross receipts, occupational, ad valorem property, and other similar
levies imposed on its income or fixed assets, as well as any interest,
penalties, or fines incurred in connection with a tax or other levy that is for
that party's account hereunder, unless such interest, penalty or fine is the
result of the fault or neglect of the other party.
(i) No Waiver. Failure or delay by either party to insist on
the strict performance of any covenant, term, provision or condition hereunder,
or to exercise any right herein contained, or to pursue any claim arising
herefrom, will not constitute or be construed as a waiver of such covenant,
term, provision, condition, claim or right. Any waiver by either party will not
constitute or be construed as a waiver of such covenant, term, provision,
condition, claim or right. Any waiver by either party will not constitute or be
construed a continuing waiver of any subsequent default.
(j) Assignment. Neither Supplier nor Purchaser shall assign
this Agreement nor any rights or interests hereunder to any Person, firm or
corporation without the prior written consent of the other party, except that,
without such consent, Purchaser may assign this Agreement to any parent or
subsidiary of Purchaser or any subsidiary of its parent entity or to any
corporation that succeeds substantially to all of its business with respect to
the Products by merger, sale of assets, or otherwise. All of the terms and
provisions of this Agreement, whether so expressed or not, shall be binding
upon, inure to the benefit of, and be enforceable by the parities and their
respective representatives, successors and permitted assigns.
(k) Sub-Distributors.Purchaser shall be entitled, without
Supplier's prior consent, to appoint sub-distributors or agents in respect of
the Products anywhere in the Territory so long as sub-distributors comply with
the provisions of this Agreement.
(l) Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Georgia.
(m) Arbitration. Any controversy or claim (whether such claim
sounds in contract, tort, discrimination, or otherwise) arising out of or
relating to this Agreement, or the breach thereof, or the commercial or economic
relationship of the parties hereto, shall be settled by binding arbitration in
Atlanta, Georgia in accordance with the Expedited Procedures (Rules 53-57) of
the Commercial Arbitration Rules of the American Arbitration Association
("AAA"). The arbitration shall be governed by the U.S. Arbitration Act, 9 U.S.C.
ss.ss.1-16, to the exclusion of any provisions of state law inconsistent
therewith or which would produce a different result. A proceeding shall be
commenced upon written demand by Purchaser or Supplier to the other. The
arbitrator(s) shall enter a judgment by default against any party which fails or
refuses to appear in any properly noticed arbitration proceeding. The proceeding
shall be conducted by one (1) arbitrator, unless the amount alleged to be in
dispute exceeds two hundred fifty thousand dollars ($250,000), in which case
three (3) arbitrators shall preside. The arbitrator(s) will be chosen by the
parties from a list provided by the AAA, and if they are unable to agree within
ten (10) days, the AAA shall select the arbitrator(s). The arbitrators must be
experts in licensing and distributorship law. The arbitrators shall assess costs
and expenses of the arbitration, including all attorneys' and experts' fees, as
the arbitrators believe is appropriate in light of the merits of the parties'
respective positions in the issues in dispute. Each party submits irrevocably to
the jurisdiction of any state court sitting in Xxxx County, Georgia or to the
United States District Court for the Northern District of Georgia for the
purposes of enforcement of any discovery order, judgment or award in connection
with such arbitration. The award of the arbitrator(s) shall be final and binding
upon the parties and may be enforced in any court having jurisdiction. The
arbitration shall be held in such places as set by the arbitrator(s) in
accordance with Rule 55.
(n) Entire Agreement: Modification. This Agreement constitutes
the entire agreement between the parties (including attachment I & II) relating
to the subject matter hereof. Any previous agreements or representations,
including those covering credit terms, freight allowances and waivers of any
standard charges, are hereby declared void. Any modification of, or addition to
this Agreement must be expressly agreed to by the parties in writing, and may
not be effected by purchase order, sales confirmation, acknowledgment or similar
forms.
(o) Invalidity. In the event any provision of this Agreement
shall be declared unenforceable, such provision shall be deemed severed from
this Agreement and the parities shall meet and negotiate in good faith to
replace such unenforceable provision with another provision intending to carry
out the intent of the unenforceable provision to the extent permitted by
applicable law.
(p) Notices. All notices, requests and other communications
hereunder shall be in writing and shall be deemed given and effective five (5)
business days after being mailed first class, certified or registered mail,
postage prepaid, return receipt requested, addressed as set forth below, or two
(2) days after being sent by overnight courier, telex, or telecopy (a machine
that indicates the telex or telecopy number of the machine to whom such
communication is sent and the receipt by such machine of such communication) to
the address or telecopy number first above written, or, in each case, at such
other address or to such other person as the party may specify in writing.
(q) Headings: Counterparts. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. This Agreement may be executed in
counterparts, each of which shall be deemed original but all of which together
shall constitute the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
EXCLUSIVE SALES AND DISTRIBUTORSHIP AGREEMENT as of the date first
above written.
SUPPLIER: PURCHASER:
BIOSHIELD TECHNOLOGIES, CONCRETE MICROTECH, INC.,
INC., a Georgia corporation a Georgia corporation
By:__/s/ Xxxxxxx X. Xxxxx _____________
By:_____/s/ _____________________
Title:___[president]_________________
Title:_________________________
[CORPORATE SEAL] [CORPORATE SEAL]
ATTACHMENT I
General Terms and Conditions of Distributorship Agreement
A. Nothing in this Agreement shall be construed as conferring a right to
use in advertising, publicity, or otherwise, any trademark, trade name,
trade dress, or trade designation of BioShield.
B. Distributor shall be for all purposes an independent contractor, and
not an employee or agent of BioShield. Distributor may not bind on any
matter. Distributor assumes full responsibility for, and will hold
BioShield harmless against, all payments required by any authority for,
to or on behalf of Distributor's employees or agents. Distributor is
not authorized or empowered in any manner to accept service or other
notice addressed to it in any manner upon BioShield or submitting
BioShield to the jurisdiction of any court or government agency
whatever.
C. Failure of Distributor to order or to take, or of BioShield to make, any one
or more deliveries, if occasioned by any cause beyond the reasonable control of
either of said parties of any nature, character, or kind whatsoever, shall not
affect the remainder of this Agreement, nor subject the one so failing to any
liability to the other because thereof and, Distributor may purchase else where
the product required by it during the period or periods of Bioshield's failure
to make deliveries if occasioned by any such cause or causes. Without limiting
the liability of the foregoing languages, such causes shall include: fire,
storm, flood, act of God, war, explosion, sabotage, strike or other labor
trouble, shortage of labor and/or raw materials, utilities, fuel and/or energy,
embargo, car shortage, accident, expropriation of plant, Product and/or raw
materials in whole or in part by Federal or State authority, inability to secure
machinery and/or other equipment for the manufacture of Product, acts of the
Federal Government, any State or local Government, or any agency thereof and,
any other like cause interfering with the production, transportation or
consumption of Product.
D. In the event of a shortage or anticipated shortage of Product and/or delay in
shipment or delivery occasioned by any of the causes before mentioned or any
like causes, BioShield will endeavor to allocate equitably the available Product
among its customers and distributors, to BioShield's own internal use and to the
use of its affiliates. In the case of a shortage or anticipated shortage of
labor, raw materials, utilities, fuel or energy. BioShield will endeavor to
allocate equitably the available labor, raw materials, utilities, fuel and
energy to use in the product covered by this contract to BioShield's own
internal use, to the use of its affiliates and to the use in other products. The
equity of any such allocations made by BioShield in the exercise of its
discretion shall be conclusive and binding upon Distributor. BioShield shall not
be obligated to make up any deficiencies hereunder due to an such cause except
by written mutual agreement of the parties hereto.
E. Distributor agrees that it will supply to all of its customers Product
information which impacts upon the medical, safety, and environmental aspects of
handling, storing and using such Products. Such information includes material
safety data sheets, product specification bulletins and other information
appropriate to the customer?s specific operations. Distributor further agrees to
place proper BioShield, or BioShield approved, labels on drums filled by
Distributor, on Distributor?s storage tanks and to recommend that its customers
for Products use such labels on all of their drums and storage vessels.
Distributor will also supply additional information for safe and legal shipping
as needed by his customers for Product.
F. If shipment is made in tank cars or tank trucks furnished by BioShield,
Distributor will unload said shipments promptly after placement by
carrier and no reconsignment of BioShield's tank cars or tank trucks
shall be made by Distributor without the written consent of BioShield.
Tank cars or tank trucks held by Distributor in excess of BioSheild's
published schedule of demurrage free time will be subject to demurrage
at rates in Attachment III hereto.
G. BIOSHIELD MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
NO WARRANTY OF MERCHANTABILITY, EXCEPT THAT THE PRODUCT SOLD HEREUNDER
SHALL BE FROM BIOSHIELD?S STANDARD PRODUCTION THEREOF AND MEET
BIOSHIELD?S PUBLISHED SPECIFICATION.
H. NO CLAIM OF ANY KIND, WHETHER AS TO THE PRODUCT DELIVERED OR FOR
NON-DELIVERY OF THE PRODUCT, OR OTHERWISE, SHALL BE GREATER IN AMOUNT
THAN THE PURCHASE PRICE OF THE PRODUCT IN RESPECT OF WHICH SUCH DAMAGES
ARE CLAIMED; AND, FAILURE TO GIVE NOTICE OF CLAIM WITHIN THIRTY (30)
DAYS FROM DATE OF DELIVERY, OR THE DATE FIXED FOR DELIVERY,
RESPECTIVELY, SHALL CONSTITUTE A WAIVER BY THE DISTRIBUTOR OF ALL
CLAIMS WITH RESPECT THERETO. IN NO EVENT WILL BIOSHIELD BE LIABLE FOR
LOSS OF PROFITS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF DISTRIBUTOR
OR DISTRIBUTOR?S CUSTOMERS.
I. Any increase of the costs to manufacture, or to store, transport or handle at
BioShield's or its affiliates' facilities, either the products sold hereunder or
materials used in the manufacture of products sold hereunder, whether paid by
BioShield or an affiliate and caused by an increase in existing or the
imposition of any new taxes, excises, duties, environmental, superfund (excise),
or other governmental charges of any kind (imposed by any national, state or
municipal government or any agency or political subdivision thereof) shall be
added to the sales price and paid by Distributor. Further, any taxes, excises,
duties, environmental, superfund (excise), or other governmental charges of any
kind imposed upon the sale or purchaser, transportation, loading, or
off-loading, storage, importation or use of products sold hereunder, or any
services rendered in connection thereof, shall be paid by Distributor. Each
party shall, however, be responsible for income, franchise, gross receipts,
occupation, ad valorem property, AMT superfund, and other similar levies imposed
on its income or fixed assets, as well as any interest, penalties or fines
incurred in connection with a tax or other levy that is for that party's account
hereunder, unless such interest, penalty or fine is the result of the fault or
neglect of the other party.
Distributor shall furnish to BioShield all exemption certificates for
which it is entitled or authorized to issue with respect to any tax
imposed on the manufacture, sales, purchase, transportation, handling,
or use of the product sold hereunder.
J. Failure or delay by either party to insist on the strict performance of
any covenant, term, provision or condition hereunder, or to exercise
any option herein contained, or to pursue any claim arising herefrom,
will not constitute or be construed as a waiver of such covenant, term,
provision, condition, option, claim or right. Any waiver by either
party will not constitute or be construed as a waiver of such covenant,
term, provision, condition, option, claim or right. Any waiver by
either party will not constitute or be construed a continuing waiver of
any subsequent default.
K. This Agreement shall not be transferred or assigned by either party
without the written consent of the other party, except that BioShield
may transfer or assign this Agreement to a subsidiary or affiliate of
BioShield, or to a successor to the portion of BioShield's business
covered by this Agreement.
L. Notice to either party under any provision of this Agreement shall be
deemed good and sufficient if sent by registered or certified mail to
the last known post office address of such party, and shall be
effective upon the date of such mailing, otherwise on receipt.
M. This Agreement shall be construed in accordance with the laws of the state of
Georgia.
N. This Agreement constitutes the entire contract between the parties
concerning the sale or purchase of Product. Any previous agreements or
representations including those covering credit terms, freight
allowances and waivers of any other standard charges, are hereby
declared void. Any modification of or addition to this Agreement must
be expressly agreed to by the parties in writing, and may not be
effected by purchase order, sales confirmation, acknowledgment or
similar forms; provided, however, that BioShield may from time to time
modify Attachments I, II, and/or III, which Attachments are
incorporated into this Agreement by reference, and the modified terms
and conditions of said Attachments will apply to this Agreement, from
and after the date set forth in the notice of modification.
ATTACHMENT II
PRODUCT SUPPLEMENT
Distributor: Date of this Supplement: 02/07/97
Superseded Supplement Date: 12/11/96
Date of Distributor Agreement: 02/07/97
1. Products
AM 500
SB 3651 P
AM 36.01
Estimated Annual Requirements
1997 - $ 500,000.00
1998 - $2,000,000.00
2. Distributor's "Territory for the above products are "The World."
3. Distributor may resell Products into the following markets:
Concrete and Sewer Pipes
4. The following customers are Excluded Customers: Precision Fabrics.
5. Distributor's discounts from list price are as follows: 10% List Price
(all 5 gallon pales add $5.00)
AM500 SB3651 P AM 36.01
5 Gallon Pale $6.50/LB 5 Gallon Pale $24.00/LB 5 Gallon Pale $21.00/LB
1-4 Drums $6.00/LB 1-4 Drums $22.00/LB 1-5 Drums $18.00/LB
5-49 Drums $5.50/LB 5-49 Drums $21.00/LB 5-49 Drums $17.00/LB
50-80 Drums $5.00/LB 50-80 Drums $20.50/LB 50-80 Drums $16.00/LB
Received on: 0/0/00 Xxxxxxxxxxx: \x\ Xxxxxx Xxxxxxxx
By:__________________________________
