DISTRIBUTION AGREEMENT
This Agreement is made this 17th day of March 1997 by and between
PROCESS TECHNOLOGIES, INC. ("PTI"), a corporation duly organized and existing
under the laws of the State of New York with offices at 00 Xxxxxx Xxxxx, Xxxxxxx
Xxxx, Xxx Xxxx 00000 and OAKMOOR ENTERPRISES INC. ("Distributor"), a corporation
duly Organized and existing under the laws of the State of New Hampshire with
offices at 00 Xxxxxxxx Xxxx. Xxxxxx, Xxx Xxxxxxxxx 00000.
WHEREAS, PTI is the holder by assignment of US Patent Number 5,417,389,
"Method of and Apparatus for Deicing an Aircraft by Means of Infrared Radiation"
(the "Patent") and will be the holder for patent improvements for AIRCRAFT
DEICING;
WHEREAS, PTI has applied for patent protection in the Territory as
defined below.
WHEREAS, PTI applies and markets the technology encompassed by the
Patent under the trademark (the 'Trademark') InfraTek Pre-Flight Deicing system
consisting of a structure, energy process units and associated hardware (the
"Deicing System'); and
WHEREAS, PTI desires to appoint Distributor and Distributor desires to
accept appointment as a distributor of InfraTek Deicing System in Norway.
Sweden, Denmark, Finland and Iceland (the 'Territory") upon the terms and
conditions herein set forth;
WITNESSETH
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises of the Parties set forth below, it is agreed as follows:
1. DISTRIBUTORSHIP
(a) Subject to the provisions herein and for the duration of
this Agreement, PTI appoints Distributor and Distributor accepts appointment as
the exclusive distributor of the InfraTek Deicing Systems for sale in the
Territory. However, nothing herein shall prohibit PTI from entering into
Distribution agreements for other territories or countries. Distributor may not
appoint any subagents without the prior written consent of PTI, In its sole
discretion. Distributor shall not have an exclusive distributorship for sales to
United States military bases or military installations in the Territory.
(b) All sales of Deicing Systems to third parties
("Purchaser") shall be subject to the prior written approval of PTI, in its sole
discretion.
2. PAYMENT FOR DEICING AND COMPENSATION TO DISTRIBUTOR.
(a) For sales in the Territory: Purchaser shaft purchase from
.PTI at negotiated prices to include adjustment for local erection and
installation costs, if required.
(b) All components of the InfraTek Deicing System shall be FOB
point of manufacture. All freight, taxes, import or other duties shall be borne
by the Purchaser.
(c) Any design modifications to the InfraTek System necessary
to retrofit the InfraTek- System for use in the Territory and known to the
Distributor must be disclosed to PTI and shall be at the sole cost and expense
of Purchaser. This will be a one time cost and charged to Purchaser at normal
PTI billing rates. All support materials for the Deicing System shall be
provided in English.
The Terms of Sale to Purchaser are in part contained in Exhibit A attached
hereto and made a part thereof.
(d) In consideration of the Distributor providing the services
in full as outlined in Exhibit B below, the Distributor shall receive a
commission on the total sale price to Purchaser excluding freight, taxes, and
import or other duties for each bona fide purchase of the InfraTek Deicing
System as set forth in Exhibit C. Such payment by PTI to Distributor shall be
within 30 days of each receipt of good funds from the Purchaser as listed in
Appendix 'A", items 1.2, 3 and 4.
3. MARKETING RESPONSIBILITIES.
(a) PTI and Distributor shaft mutually agree on the cost and
payment of all advertising and promotion expenses.
(b) Distributor shall comply with all applicable laws and
regulations, including, but not limited to, those with respect to illegal,
unfair or deceptive- trade practices, applicable to the promotion and sale of
Deicing Systems and shall be solely responsible for obtaining and maintaining
all licenses, permits and other authorizations required by federal, provincial
or Local laws, rules or ordinances, applicable to it in connection with the sale
of Deicing Systems within the Territory.
(c) Distributor shall maintain such records of sales
activities and such other records with respect to sales as required by law and
reasonably requested by PTI and shall make the foregoing records available to
PTI upon 60 days notice for inspection and copying at PTI's expense for at least
three (3) years after the year in which they were prepared.
(d) Distributor shall sell a minimum of five (5) InfraTek
Deicing Systems in
2
the territory during the five (5) year term of this agreement. If five (5) or
more sales are achieved during the term, this agreement shall be automatically
renewed far an additional five (5) years, notwithstanding any other references
herein contained. For purposes of this Agreement a "Sale" is defined as a bona
fide PTI approved and accepted purchase order accompanied by a deposit in
accordance with the sales terms and conditions as attached in Exhibit A.
4. PATENTS. TRADEMARKS
(a) It is understood and agreed that the Deicing System is
covered by certain patents and trademarks in favor of PTI. Distributor
acknowledges that it is not acquiring any fight, title or interest of any nature
in or to such patents or trademarks, but is merely acquiring the exclusive fight
to market the Deicing System In the Territory. Distributor shall immediately
advise PTI of any possible infringement of any patent and/or trademark of PTI by
any entity. PTI and Distributor, simultaneously with the execution and delivery
hereof, have executed and delivered a Non-Disclosure and Non-Use Agreement
between them with respect to the Patent and Trademark.
(b) During the term of the Agreement, Distributor may use
trademarks and trade names (such trademarks and trade names, collectively
"Marks") now or thereafter owned by or licensed to PTI relating to aircraft
deicing systems. In connection therewith, Distributor shall;
(i) Use the Marks in such manner as described by PTI
(ii) Refrain from contesting the rights of PTI in and
to any thereof;, and
(iii) Upon termination or expiration of this Agreement,
immediately cease further use of the Marks.
6. RELATIONSHIP BETWEEN PARTIES.
(a) Distributor agrees that it is not and shall not represent
itself to be an associate company of PTI or supplying company for any purpose
and shall not incur any obligations nor make any promise or representation on
behalf of the same, and further agrees to ensure that its approved
representatives do not incur any such obligations or make any such promises or
representations.
(b) This Agreement does not in any way create an
employer/employee
3
relationship between PTI or any associate company or supplying company and
Distributor or Distributor employees or both.
(c) Distributor shall not permit, allow, consent or take part
in any manner in the manufacture, sale or distribution of the InfraTek System or
its component parts by any entity other than as approved in writing by PTI, For
purposes of this Agreement Mectronics Plast - Miljo AS, XX Xxx 000 Xxxxxxxx,
Xxxxxxx 00, X-0000 Xxxx, Xxxxxx is approved by PTI as an agent of Distributor.
6. CONFIDENTIAL INFORMATION
(a) Distributor agrees and covenants that, without the prior
written consent of PTI, it shall not use, alone or in concert with others, or
divulge any "Confidential Information' or 'Business Contacts" (as such terms are
defined in the Non-Disclosure and Non-Use Agreement) to any other person, firm,
partnership or corporation, either during the term hereof or after the
expiration or termination hereof.
(b) Upon expiration or termination of this Agreement,
Distributor shall keep confidential all notebooks, papers and writings and
electronic data of arty kind and all data of arty kind and nature relating to
the Confidential Information and Business Contacts.
7. RESTRICTIVE COVENANTS. Within the Territory for a period of two (2)
years and outside the Territory for a period of one (1) year following the
expiration or termination of this Agreement, Distributor shall not, directly or
indirectly, for profit or otherwise, for its own account or representing any
other person, firm, partnership or corporation, solicit orders from or seek to
engage in the manufacture and/or sate of aircraft deicing systems,
8. INDEMNIFICATION.
(a) Distributor agrees to defend, indemnify and hold PTI
harmless from and against any deficiency, cost, expense, liability or loss,
including. but not limited to, reasonable attorneys' fees and disbursements,
incurred by PTI arising out of or as a result of, Incident to or in connection
with Distributor's failure to perform or breach its obligations, covenants or
warranties hereunder or any other acts or omissions of Distributor, its
employees, agents and invitees.
(b) PTI agrees to defend. Indemnify and hold Distributor
harmless from and against any deficiency, cost. expense, liability or loss,
including, but not limited to, reasonable attorneys' fees and disbursements,
incurred by Distributor arising out of or as a result of, incident to or in
connection with PTI's breach of the warranty set forth in paragraph
4
(c) In the event PTI is required to cure a default caused by
Distributor in connection with Distributor's responsibility hereunder, PTI shall
have the right to set off against and deduct from Distributor's commission
payable herein any sums of money so expended by PTI to cure Distributor's
default.
9. WARRANTY. LIMITATION. PTI warrants to Distributor that the Deicing
System as installed shall be (i) in material confirmatory with the
specifications, a copy of which distributor acknowledges it has received
attached hereto and (ii) free from defects in material and workmanship for a
period of 12 months from the completion of the erection of the InfraTek Deicing
System.
10. DAMAGES. LIMITATION. Distributor's exclusive remedy and PTI's sole
liability on any claim, whether tort, contract or warranty shall be limited to
PTI's obligation to correct any defect in workmanship and/or material and PTI
shall not be liable for any claims or damages, either direct or consequential,
except those resulting from nonconformity to the specifications and a maximum
amount not to exceed the purchase price.
11. INSURANCE. For each InfraTek Deicing System purchased during the
term of this Agreement, Distributor shall use its best efforts to require
Purchaser to obtain and maintain in full force and effect the following policies
of insurance issued by an insurer acceptable to PTI.
(a) Genera[ Liability Insurance, including Premises and
Operations, Products and Completed Operations, Contractual Liability, Personal
Injury and Broad Form Property Damage insurance with respect to personal injury,
death or property damage in the amount of at least five million dollars
($5,000,000) (US) for each occurrence, naming (PTI as an additional insured as
its interest may appear; and
(b) Workers' Compensation and Employer's Liability and
Disability Benefits Law Insurance in form and amounts as may be required by
local, federal and provincial law.
(c) PTI will require such insurance coverage as a part of each
and every quotation issued within the territory, and represents the fight to
withhold its approval of the sale to Purchaser for Purchaser's failure to
provide insurance acceptable to PTI,
Distributor agrees to make its best efforts to cause end user to
provide to PTI a certificate from the insurer evidencing compliance with the
foregoing requirements.
12. PERIOD OF AGREEMENT.
5
(a) This Agreement shall remain in force from the date hereof
until March 15, 2002 and shall terminate on March 15, 2002, unless sooner
terminated as provided in this Agreement, including the sales performance
requirements herein, or unless automatically reviewed as set forth herein.
(b) In the event either party breaches or fails to perform any
material obligation hereunder or any other agreement between the parties,
including, without limitation, prompt payment of any outstanding monies owed,
the other party may terminate this Agreement on thirty (30) days prior written
notice.
(c) The termination of this Agreement shall not affect or
impair the rights and obligations of either party under any outstanding invoice
or purchase order under this Agreement as of the date of termination.
(d) This Agreement shall be renewed by mutual consent of the
parties. However, Distributor shall have a right of first refusal to match any
offer PTI receives for the exclusive sale of Deicing Systems in the Territory
after the expiration of the term of this Agreement.
13. OBLIGATIONS UPON TERMINATION.
(a) Upon expiration or termination of the Agreement as herein
above set forth, Distributor shall:
(i) Return to PTI all written or printed materials
provided to Distributor by PTI then in the possession of Distributor, Including,
but not limited to, Confidential Information;
(ii) Upon request of PTI, deliver to PTI copies (at
PTI's expense) of all sales records that Distributor has created and maintained
pursuant to this Agreement. All sales records kept by Distributor shall be kept
confidential by Distributor. Such records shall exclude records used in
preparation of Distributors financial statements and reports;
(iii) Cease any further use of the Marks and/or
Patents.
14. MISCELLANEOUS.
(a) This Agreement shall be binding upon and inure to the
benefit of the respective parties hereto, their successors and permitted
assignees, provided, however, Distributor may not assign this Agreement in whole
or in part without the prior written consent of PTI, such consent not to be
unreasonably withheld. However, Distributor may
6
assign this Agreement to Mectronics without the prior written consent of PTI.
However, this Agreement may be assigned by PTI to its parent, or any entry owned
in whole or in part by its parent or which PTI forms a part of
(b) This Agreement constitutes the valid and binding
obligations of each party and has been duly authorized by proper corporate
action and does not conflict with or contradict the terms of any agreement,
document, instrument or certificate to which either party is bound.
(c) Neither Party shall be liable to the other for delay or
failure in performance of any obligation under this Agreement, other than for
payment of money due, arising from causes beyond the control of either party;
and in such cases, the time for performance shall be extended by the period of
such force majeure.
(d) This Agreement is made pursuant to the laws of the State
of New York and is to be interpreted and construed in accordance with the laws
of the State of New York without regard to its conflict of laws. Any action or
proceeding brought concerning the interpretation or construction of this
Agreement or a breach of this Agreement shall be brought in the Supreme Court of
the State of New York in the County of Ede.
(e) If any provision of this Agreement or the application of
such provision shall be held illegal or unenforceable, such provision shall be
modified to the extent necessary to render it enforceable, if possible, but in
any event, the remaining provisions of this Agreement shaft not be affected as a
result of any such unenforceable and shall be fully binding and enforceable
(f) The failure or delay of either party in enforcing any
right or obligation or any provision of this Agreement in any instance shall not
constitute a waiver thereof in that or any other instance. Either party may only
waive any such right, obligation or provision by an instrument in writing signed
by it. Any waiver by any party of a breach of any part of this Agreement by
another Party shall not operate as a Waiver of breaching Party's later or
continuing breach of the same or any other part hereof.
(g) The rights and remedies provided in this Agreement are
cumulative and not exclusive ('except for the limitations set forth in Sections
4 and 5, above) of any rights or remedies provided under any law or by any other
agreement. The exercise by either party of any right or remedy will not preclude
either party from exercising any other right or remedy. Either party may pursue
its rights and remedies in such order as it determines.
(h) This Agreement and the Non-Disclosure and Non-Use
Agreement contain
7
the entire understanding of the parties with respect to the subject matter of
the Agreement and it supersedes all prior understandings and agreements, whether
written or oral, and all prior dealings of the parties with respect to the
subject matter hereof. The options contained in this Agreement are inserted for
convenience only and shall not be deemed to constitute a substantive part of
this Agreement. There ere no oral representations, understandings, or warranties
made in connection with this Agreement. This Agreement cannot be changed or
terminated orally or by any course of dealing among the parties hereto, but only
by a writing executed by the parties, hereto.
(i) This Agreement may be executed in several counterparts
each of which shall be deemed to be an original, and all such counterparts when
taken together shall constitute one and the same instrument.
(j) Each of the persons signing below warrants that he is duly
authorized to sign this Agreement on behalf of the party for which he is
signing.
(k) Any communications or notices required or permitted under
this Agreement shall be mailed to a party at the address firs! above listed for
such party or to such other addresses as such party may designate under this
Paragraph,
(l) In the event any conflict exists between the provisions of
this Agreement and the Non-Disclosure and Non-Use Agreement, the terms of this
Agreement shall be controlling.
(m) The parties acknowledge that a violation of Sections 4, 6
and 7 may cause irreparable harm to the affected party, and may be specifically
enforced in any court of competent Jurisdiction within the State of New York and
the parties consent to jurisdiction in the State of New York, Erie County and
enforcement of any judgment or order obtained thereon In any other jurisdiction
and court.
(n) The provisions of Sections 4, 6, 7, 8 and 13 shall survive
the expiration or termination of this Agreement.
(o) PTI shall provide technical advisors to assist in the
erection and installation of the InfraTek System to specifications provided by
Purchaser but shall not in any manner be responsible for site preparation,
construction or erection, operation or end usage of the lnfraTek System to the
extent not specified in any quotation made in the Territory. PTI shall also
provide services as set forth on Exhibit D.
(p) Distributor shall provide those services set forth in
Exhibit . In the performance
8
of its duties and obligations in this Agreement, Distributor shall at all times
act in the best interest of PTI.
IN WITNESS WHEREOF, the parties have hereto set their hands and
seals as of the date first set forth above.
PROCESS TECHNOLOGIES. INC.
By:
---------------------------------
Xxxx Xxxx, President
OAKMOOR ENTERPRISES INC.
By:
---------------------------------
9
EXHIBIT A
TERMS OF SALE
1. 30% Deposit accompanying the Purchaser's Purchase Order
2. 30% upon the first delivery of InfraTek Deicing System material to the site.
3. 30% upon the completion of erection of the InfraTek Deicing System.
4. 10% upon commissioning of the InfraTek Deicing System.
The above payments shall be in form satisfactory to PTI,
All payments are due immediately upon the occurrence of the events set forth in
1-4 above.
Any and all insurance provided by Purchaser must be approved by PTI. PTI
reserves the right to withhold its' approval of the sale to Purchaser for
Purchaser's failure to provide insurance acceptable to PTI.
10
EXHIBIT B
SERVICES PROVIDED BY DISTRIBUTOR/PURCHASER
1. Purchaser will provide airports operation insurance as required.
2. Purchaser will provide any insurance required for a period of twelve months
after installation of InfraTek Deicing System for maintenance work.
3. Distributor will be responsible for contacts and discussions with Purchaser.
4. Distributor shall cause Purchaser and Purchaser shall be responsible for
negotiating and completing all site preparation costs and arrangements prior to
installation. These include, but are not limited to:
a. Availability of suitable gas supply.
b. Electrical requirements supplied to site,
c. Metering and control devices for gas and electric.
d. Ground preparation of site, footers and any required equipment
relocation.
e. Plot and site surveys, environmental studies and utility
Identification.
f. All site access, security and permit issuance.
5. Distributor will provide at its sole cost and expense one full-time project
manager for the duration of installation and erection of InfraTek Deicing
System, The Project manager shall arrange and coordinate with and be responsible
for the payment of all labor, equipment rental, operation, approvals, end
permits as required (Exhibit E, 2.), The Project Manager shall also coordinate
with PTI's on site Technical Advisors.
6. Distributor shall cause Purchaser and Purchaser shall arrange all
Federal or Local aviation authority approvals as may be required for erection
and operation of the Deicing System.
11
EXHIBIT C
COMMISSION SCHEDULE
SYSTEM PERCENT
3000 15%
2000 15%
1000 15%
500 15%
250 15%
12
EXHIBIT D
SERVICES PROVIDED BY PTI
1. PTI will provide physical damage insurance coverage during the
erection/commissioning period and will provide certificates thereof if required.
2. PTI's price to Purchaser shall be negotiated by PTI, Distributor and
Purchaser and shall include standard price allowances far installation hardware,
equipment and required materials (allowances) unless Purchaser or Distributor
request such allowances be excluded and quoted separately from the Deicing
System.
In all cases where allowances are quoted, PTI xxxx provide such allowances to
the Distributor at the time of shipment of Deicing System but only after receipt
of any and all payments then clue to PTI as per Exhibit "A".
3. PTI will provide Technical Advisors and training for the erection,
installation and commissioning of the InfraTek Deicing System, and will instruct
Purchaser in operation, maintenance and support of the InfraTek Deicing System.
4. PTI will provide all support materials in English. Any translations will be
sole responsibility and expense of Purchaser.
13
