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Exhibit 10.8
XXXXXX RESOURCES LIMITED
0000 Xxxxx Xxxxxx
Xxxxx 000, Xxxxx Xxxx
Xxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0
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DISTRIBUTOR AGREEMENT
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By this Agreement, made as of this 15 day of December 2000 by and
between XXXXXX RESOURCES LIMITED, 3875 Keele street, suite 000 Xxxxx
Xxxx, Xxxxxxx, Xxxxxxx, Xxxxxx, ("XXXXXX") and Contemporary Trading and
Investments Ltd. Trident Trust Company (B.V.I.) Trident Xxxxxxxx
Wickhams Cay Road Town, Tortola British Virgin Islands.
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1. APPOINTMENT, ACCEPTANCE AND PRODUCT
Xxxxxx authorizes Distributor to sell Xxxxxx products, listed in
the Distributor Agreement Supplement ("Supplement") attached to this
Agreement ("Product(s)"), on a nonexclusive basis, so long as
Distributor continues to solicit, service and supply customers in
Distributors primary area of responsibility specified in the supplement
to Xxxxxx'x sole satisfaction. Terms and conditions of sale and pricing
specified hereunder are premised on sales within a domestic primary area
of responsibility and the market conditions prevailing therein,
accordingly, unless Distributor's specified primary area of
responsibility is outside the United States, Xxxxxx will have the
option, upon the number of days prior written notice listed in the
supplement, to change the pricing, terms and conditions herein, if
Distributor resells Product(s) for ultimate shipment to locations
outside the United States.
Distributor accepts the authorization and agrees to use its best
efforts to maintain, promote and increase trade in Product(s) and to
maintain a reasonable level of Product inventory to meet customer needs.
2. TERM OF AGREEMENT
This Agreement shall be effective as of the date first written
above through December 31 of the same year, and shall continue from year
to year thereafter on a calendar year basis, until canceled at any time
upon at least ninety (90) days prior written notice given by either
party to the other, failure on the part of the Distributor to comply
with the provisions of Article 8 and/or 9 or any other substantial
breach shall be grounds for immediate termination. Notwithstanding any
terms in the Supplement to the contrary, the Supplement shall terminate
not later than the date of termination, expiration or cancellation of
this Agreement, unless specifically agreed to the contrary by Xxxxxx and
distributor in writing, all purchases of Product(s) by Distributor from
Xxxxxx during the term of this Agreement, until this Agreement is
terminated, shall be subject to its terms and conditions.
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3. NATURE OF RELATIONSHIP
This Agreement establishes the Distributor as a purchaser of Product(s) from
Xxxxxx for resale and does not constitute Distributor as an agent of Xxxxxx for
any purpose whatsoever. Distributor is an independent contractor and is no way
authorized to make any contact, warranty or representation on behalf of Xxxxxx,
or create any obligation, express or implied, on behalf of or in the name of
Xxxxxx.
4. LOCATION
Xxxxxx shall sell and deliver Product(s) to the delivery locations in
Distributor's primary of responsibility as stated in the Supplement. While
Xxxxxx normally sells carload, truckload and bulk shipments of Product(s)
directly to the customer, under appropriate circumstances. Xxxxxx may allow
Distributor to serve such accounts on a third party basis under Xxxxxx'x
then-current policy of sale of the Product(s) in question.
5. QUANTITY
The supplement attached to this Agreement shall establish the quantity of
Product(s) to be purchased by Distributor and delivered by Xxxxxx. Distributor
and Xxxxxx shall meet at least annually after the date of this Agreement to
review such quantity terms and establish new quantity terms for each succeeding
year of this Agreement unless otherwise specified in the Supplement. Xxxxxx
shall not be obligated to deliver nor Distributor to take, on a monthly basis,
any more than a proportionate part of the quantity specified in the Supplement,
determined by dividing such quantity by the total number of months in the
current contract term.
6. PRICE
A. The purchase price for Product(s) sold to the Distributor shall be Xxxxxx'x
Standards prices to Distributors in effect at the time of shipment, plus any
applicable taxes, excise (including the so-called "Superfund" tax) duties or
other government charges on production, manufacture, storage, sale,
transportation, delivery or use of Product. Xxxxxx shall advise Distributor of
its standard prices, discounts and allowances as established by Xxxxxx from time
to time. Distributor is to receive 10% commission for all products sold
excluding shipping costs.
B. PRICE PROTECTION
During the calendar year, Distributor may furnish Xxxxxx with satisfactory
written evidence of a legitimate lower price offered to it by a recognized
domestic manufacture on standard product(s) of like quality and quantity as any
of the undelivered portion of Product(s) hereunder on substantially similar
terms and conditions. Xxxxxx shall either meet such lower offered price for
those Product(s) within (15) days after its receipt of such evidence of the
offer or permit Distributor to purchase any or all of the undelivered quantity
of such available Product(s) form such alternate source while such lower
delivered prices are in effect. In the later case, if Distributor has placed no
order with Xxxxxx for delivery of any quantity of such Product(s) during the
forty-five (45) days following its submission to Xxxxxx of written proof of the
lower competitive price, Xxxxxx by written notice, may terminate Xxxxxx'x
obligation to sell and deliver such Product(s) under the Agreement
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C. PRICE INCREASE
Xxxxxx may revise prices of Product(s) listed in the Supplement hereto, by
giving Distributor at least the number of days prior written notice listed in
the Supplement.
D. PRICE DECREASE
If Xxxxxx'x published general price declines, Xxxxxx will protect
Distributor's bulk, drummed or packaged floor stocks of Xxxxxx manufactured
products if such products were purchased within thirty (30) days prior to the
price decrease and were in stock on the date of such decrease, Distributor must
provide Xxxxxx with satisfactory written evidence of the existence of such
inventory within thirty (30) days of such price decrease; inventory stocks may
be delivered by Xxxxxx'x representative of Xxxxxx'x election. Subject to the
conditions stated herein, Xxxxxx will rebate or issue a credit to Distributor's
for any difference in pricing following such price decline.
E. GOVERNMENTAL CONTROL
If any law, regulation or other governmental action requires Xxxxxx to
reduce price under this Agreement or prevents Xxxxxx from increasing any price
to the extent it wishes to pursuant to this Article 6, Xxxxxx may cancel from
the Agreement the Product(s) so effected by such law, regulation or other
governmental action.
7. SHIPMENTS AND TERMS OF PAYMENT
All shipments of Product(s) shall be made by a carrier who is authorized to
pick up Product(s) form Xxxxxx. Product(s) shall be shipped and invoiced as
provided in the appropriate Supplement. Terms of payment shall be net thirty
(30) days from the date of invoice, subject to change on at least thirty (30)
days written notice from Xxxxxx. Shipping dates are conditional upon
availability of Product(s).
8. HANDLING
Distributor will establish physical facilities, select carriers, and perform
physical functions consistent with safe industry practice. Xxxxxx will furnish
to Distributor Material Safety Data Sheets which include health, safety and
other hazard communication information on Product(s) consistent with the Federal
Occupational Safety and Health Administrator's Hazard Communication Standard.
Xxxxxx will also furnish other health or safety information as available.
Distributor will assess the safety aspects and environmental impact of
Product(s) set forth in the Supplement based on information and take appropriate
steps satisfactory to Xxxxxx while such Product(s) are being stored and
transported to protect persons, property, and the total environment. Distributor
will promptly disseminate all information provided to Distributor by Xxxxxx
regarding safe handling, use, and disposal of Product(s) to all purchasers of
the Product(s) set forth in the Supplement, whether such Product(s) are sold in
[illegible] [illegible] and labeled by Xxxxxx in bulk or in any other manner. In
addition, Distributor will disseminate appropriate health and safety,
information to all persons
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who may be exposed to Product(s). If Product(s) is further processed, mixed or
incorporated into another product, Distributor will likewise disseminate
appropriate health and safety information to all persons who may be exposed.
Distributor will resell Xxxxxx'x Product(s) only to customers who Distributor
has determined are capable of storing, handling or using sold Product(s) in a
safe manner and without adverse environmental effect.
9. REPACKAGING
If Distributor repackages containers and other packaging material's and
labels that comply with all pertinent provisions of any applicable federal,
state or local laws and regulations. Distributors who elect to repackage Xxxxxx
Product(s) are not authorized to use Xxxxxx'x name and trademark on repackaged
goods. Distributor shall employ quality control procedures sufficient to ensure
that the repackaged material conforms to the original specifications for
Product(s) as supplied by Xxxxxx.
10. LIABILITIES. CLAIMS. INDEMNIFICATION
Xxxxxx will defend, indemnify and hold harmless Distributor from all
product liability claims and expenses resulting from the sale or use of Xxxxxx'x
Product(s), and this provision will survive the termination of this Agreement,
provided however, that the obligations of defense, indemnification and hold
harmless will not apply to
A. Any express or implied warranty or representation by Distributor, its
employee or agents not specifically authorized in writing by Xxxxxx.
B. Claims where at the time of shipment to Distributor, Product(s) was not off
specification, and/or was not defectively packaged, and/or adequate
Product(s) warnings were provided to Distributor.
C. Bodily or personal injury, disease, death, property damage, or commercial
loss arising out of:
1. Any physical or chemical change in the form of the Product except for
paper packaging and repackaging or labeling as specified in Article 9
herein made by Distributor, its employees, agents, or contractors.
2. Sale by Distributor of Product(s) for applications for which industry
practice or literature or Xxxxxx have alerted Distributor that such
Product(s), are not suitable or not recommended, or for a use which
infringes any patent or third party property rights;
3. Any failure on Distributor's part to make such inspectors or tests as
Distributor agreed to make or a prudent distributor world promptly
undertake to make in the usual course of business in connection with
the Distribution or sale of Products.
4. Negligence or misconduct of Distributor, its employees, or agents or
any other organization or person except Xxxxxx.
5. Distributor's failure to comply with the Article 9 to the satisfaction
of Xxxxxx.
6. Sale by Distributor of Product(s) to another party for resale.
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D. Bodily injury or property damage occurring within Distributor's premises or
to Distributor's employees or agents including commercial loss of any kind,
unless due to Xxxxxx sole and direct negligence.
E. Any claim for which Distributor's has not given Xxxxxx notice to claim
setting forth fully the facts on which it is based, within thirty (30) days
after the date on which such facts were discovered or reasonably should
have been discovered.
F. Any claim were Xxxxxx upon request to Distributor, has not been given the
option to assume sole defense of any lawsuit, arising from said claim, at
Xxxxxx'x sole expense and liability.
G. Any claim for which Distributor has failed to furnish all relevant
excellence in Distributor's possession or has failed to fully co-operate
with Xxxxxx in preparing defense to the claim.
Where a claim against Distributor that is subject to the foregoing
indemnity, by Xxxxxx is settled out of court by Distributor Xxxxxx will
indemnify Distributor for such settlement only if the settlement is made with
Xxxxxx'x knowledge and consent and provided further that a release is provided
by Distributor in a form acceptable to Xxxxxx.
To the fullest extent permitted by applicable law, Distributor will
defend, indemnify, and hold harmless Xxxxxx, its directors, employees, and
agents against all claims, loss, liability (whether strict or otherwise) and
including attorneys fees and other costs of litigation, resulting from any
injury, disease, or death of persons (including but not limited to
Distributors, employees, or agents or members of their families or damage to
property including but not limited to Distributors or to the environment
caused by or in connection with Distributor's transportation, loading,
unloading, storage, handling, sale or use of Product(s) sold hereunder or
container therefor to the extent caused by acts or omissions listed in
subparagraphs (A), (C), (D), (E), (F), and (G) of this Article 10 by
Distributor, its agents, employees or contractors, and this defense, indemnity,
and hold harmless obligation of Distributor will survive the termination of
this Agreement. Xxxxxx will have the right but not the duty to assist in the
defense of any lawsuit arising from any such claim, loss, injury, disease,
death, or damage with attorneys of Xxxxxx'x selection consulting with attorneys
of Distributor's selection without relieving Distributor's of any obligation
hereunder. No claim of any kind by Distributor for damages arising from
Product(s), delivery shortage, for non-delivery of Product(s), for or
nonconforming Product(s) or breach of warranty, will be greater in amount than
the purchase price of the Product involved in the claim. Distributor's failure
to give notice of the claim within thirty (30) days after the date on which
such facts were discovered or reasonably should have been discovered will
constitute a waiver by Distributor of such claim. ENVIRO WILL NOT BE LIABLE FOR
DISTRIBUTOR'S SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES
WHETHER ARISING OUT OF BREACH OF WARRANTY, NEGLIGENCE, INCLUDING SPECIFICALLY
THE SOLE OR CONCURRENT NEGLIGENCE OF ENVIRO, STRICT LIABILITY IN TORT, OR OTHER
CAUSES.
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11. INSURANCE
Distributor shall keep in force at all times during the term of this
Agreement, a policy of Comprehensive General Liability insurance including but
not limited to products and contractual liability issued by a responsible
insurance carrier with primary coverage for each occurrence of not less than
$1,000,000. Such policy shall provide for thirty (30) days prior written notice
directly from the insurance carrier or broker to Xxxxxx of any cancellation,
material charge and/or non renewal of the policy, further, Distributor shall
furnish Xxxxxx evidence satisfactory to Xxxxxx that the forgoing insurance is
in effect.
12. SALES POLICY AND ASSISTANCE
A. Distributor shall use its efforts to develop the market potential for
the Product(s) in the primary area surrounding the stock point
locations listed under this Agreement. Xxxxxx shall encourage aid and
assist Distributor in this regard and shall endeavor on a commercially
reasonable and equitable basis to refer appropriate business to
Distributor.
B. In order to assist Distributor and to render support for Distributor's
customers, Xxxxxx will from time to time provide Distributor with
available technical data, technical bulletins, and other sales-aid
materials relating to Xxxxxx'x Product(s). Where Xxxxxx deems
appropriate, Xxxxxx will also provide technical assistance and
training seminars for Distributor's sales representatives.
X. Xxxxxx will attempt to make sales and service calls and provide
laboratory service in support of Distributor's sales efforts where
Xxxxxx and Distributor conclude such help is warranted. It is
expressly understood that any technical advice furnished by Xxxxxx is
provided gratuitously as an accommodation to Distributor and Xxxxxx
shall have no obligation or liability for the advice or results
obtained, all such advice being given and accepted at Distributor's
risk.
13. MULTIPLE DISTRIBUTOR LOCATIONS
If Distributor operates from more than one location, Xxxxxx may impose
minimum purchase and/or other criteria for each such location in accordance
with Xxxxxx'x Distributor policies and procedures. Xxxxxx may, upon not less
than three (3) months prior notice, refuse to supply any Distributor location
which does not meet Xxxxxx'x criteria. Xxxxxx will also have the option, upon
not less than (3) months prior notice, to continue sales to such noncomplying
location(s) but a reduced functional allowance and/or under different terms and
conditions of sale than stipulated in this Agreement.
14. SHIPMENTS, TITLE AND RISK OF LOSS
Xxxxxx will select the origin of all shipments and all delivery
destinations will be subject to Xxxxxx'x approval. Xxxxxx will also select the
carrier for all shipments except those picked up by the Distributor at Xxxxxx'x
Designated shipping location(s). Xxxxxx reserves the right to refuse to load
Product(s) into Distributor's owned or leased equipment which Xxxxxx, in its
sole judgment,
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determines is unsuitable; however, Xxxxxx assumes no obligation or
responsibility for inspecting such equipment or for insuring its cleanliness
prior to loading. The quantity of all bulk, rail, and truck deliveries will be
determined by Xxxxxx by outage tables with corrections for temperature, by
meter or by weigh master's certificate, as appropriate, and Xxxxxx quantity
determination will govern unless proven in error by more than one-half percent
(0.5%) of the billing quantity.
A. For packed Product(s), at the point the Product(s) is deposited by Xxxxxx or
Xxxxxx'x agents onto Distributor owned or leased equipment;
B. For bulk solids, at the point of discharge of Product(s) from the
discharge tube of Xxxxxx or Xxxxxx'x agents transfer machine into
Distributor's owned or leased equipment.
When applicable, Distributor will be granted freight allowance(s) consistent
with Xxxxxx'x then current freight allowance policy/practice. On shipments
arranged by Xxxxxx, Distributor will promptly unload each delivery at
Distributor's own risk and expense (including any detention charges) and
according to Xxxxxx'x standard practices.
15. WARRANTIES
Xxxxxx warrants only that each Product(s) will meet the physical and
chemical specifications in the supplement and/or in Xxxxxx'x applicable
publications. XXXXXX MAKES NO OTHER WARRANTIES, WHETHER OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, AND NONE WILL BE IMPLIED.
16. EXCUSES FOR NONPERFORMANCE
Either Xxxxxx or Distributor will be excused from the obligations of this
Agreement to the extent that performance, except payment by Distributor for
Product(s) delivered hereunder, is delayed by any circumstances (except
financial) reasonably beyond its control or by fire, explosion, mechanical
breakdown, strikes or other labor trouble, plant shutdown, unavailability of or
interference with the usual means of transporting the Product(s) or compliance
with any law, regulation, order, recommendation or request of any governmental
authority, in addition, Xxxxxx will be so executed in the event it is unable to
acquire from its usual sources and on terms it deems to be reasonable, any
material or equipment necessary for manufacturing the Product(s), if, because of
such circumstances, there should be a shortage of Product(s) from any of
Xxxxxx'x sources, Xxxxxx will not be obligated to purchase Products(s) in order
to perform this Agreement and may apportion its available Product(s) among all
its customers and its own internal uses in such manner as Xxxxxx finds fair and
reasonable; provided, however, that Xxxxxx will not be obligated to apportion or
otherwise make available to Distributor, Product(s) which Xxxxxx obtains by
purchase or exchange for its own internal use. Quantities of Product(s)
consequently undelivered will be deducted from the applicable remaining quantity
obligation unless the Parties agree otherwise.
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17. DISTRIBUTOR AGREEMENT SUPPLEMENT
The Product(s) sold by hereunder shall be included in the attached
Supplement, and may change from time to time. The terms and conditions of this
Agreement shall apply to any and all Supplements.
18. ENTIRETY OF AGREEMENT
This Agreement supersedes and replaces all prior agreements between
parties, if any, relating to the subject matter of this Agreement and includes
and incorporates all terms and conditions of sale of the Supplement.
Additionally, this Agreement together with Xxxxxx Distributor policy, if not
inconsistent herewith, and then current price schedules constitute the entire
understanding between the parties and no modification or waiver thereof shall
be of any force or effect unless in writing and signed by the party claimed to
be found thereby and specifically described as an amendment, extension, waiver
or release under this Agreement. No modification shall be effected by the
acknowledgment or acceptance of purchase orders, releases, or other forms
containing different or additional conditions.
19. ASSIGNMENT
Distributor shall not sell, assign, transfer, or delegate any rights, or
duties under, or rights of ownership to, this Agreement.
20. CONFIDENTIALITY
Distributor will not, without the written consent of Xxxxxx, during this
Agreement and for three (3) years thereafter, disclose to any third party any
information relating to the formulation or manufacturing processes of any
Product(s) covered by this Agreement which is not in the Public domain and is
identified by Xxxxxx as confidential.
21. NOTICES
Notice by either Xxxxxx or Distributor will be made only by letter or
telegram addressed to the other party at its address shown on page 1, first
paragraph, and will be considered given as of the time it is deposited with the
U.S. Postal Service or the company, postage, or charges prepaid, or to such
other address as may be designated by such party by notice in writing sent in
like manner.
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22. WAIVER
Any waiver by either party of any particular breach or default of this
Agreement shall be in writing and shall not constitute a continuing waiver or a
waiver of any other breach or default, and acceptance by Xxxxxx of any payments
with knowledge of any breach or default shall not constitute such waiver. Any
payments to be made or obligations to be performed by Distributor before, upon
or subsequent to the termination of this Agreement, shall survive termination of
this Agreement if not already made or performed at date of termination.
23. BREACH OF AGREEMENT
Failure of Distributor to:
A. Unless otherwise agreed to in the Supplement, annually
establish with Xxxxxx and commit to product quantities for the
contract term, or
B. Use its best offers to sell product quantities as provided for
in the Supplement on a continuing quarterly basis for three
(3) consecutive quarters, or
C. Cure any failure described in (A) or (B), above, within thirty
(30) days after written notice of same from Xxxxxx to
Distributor, or
D. Make any payment required hereunder, without deduction, setoff
or counterclaim when the same becomes due, or shall make an
assignment for the benefit of creditors or in the event of a
commencement of proceedings by or against Distributor,
involving bankruptcy, insolvency, reorganization, or
arrangement, or
E. Comply with any laws, rules, orders or standards relating to
environment, health or safety matters, upon the failure of
Distributor as set forth in Paragraphs A, B, C, D, or E in
this Article 23, Xxxxxx, without demand or notice of any kind
and without prejudice to any other remedy of Xxxxxx, may
immediately terminate this and any other Agreements with
Distributor (Distributor remaining liable for damages) or
Xxxxxx may defer further deliveries until the default is
remedied (in which event, if Xxxxxx elects, this Agreement
shall be deemed extended for a period of time equal to that
during which deliveries are deferred).
24. GOVERNING LAW
THE PARTIES HERETO AGREE THAT ALL OF THE PROVISIONS OF THIS AGREEMENT
AND ANY QUESTIONS CONCERNING INTERPRETATION AND ENFORCEMENT SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
/s/ Xxxxx Vozich
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Distributor
Xxxxx Vozich
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By
Director
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Typed Name & Title
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SCHEDULE A
AUTHORIZED PRODUCTS MINIMUM PURCHASE QUANTITY
COMMITMENT PER YEAR
SUPERFIL 600 METRIC TONS
THE ENTIRE LINE OF FIREFELT PRODUCTS 2,000 Square metres
VERMICULITE 200 METRIC TONS
MINIMUM PURCHASE PRICE COMMITMENT PER YEAR-HDM AGREES TO SELL AND DISTRIBUTOR
AGREES TO PURCHASE PRODUCTS WITH A MINIMUM AGGREGATE PURCHASE PRICE OF $_______
IN CALENDAR YEAR 2000
Note: It is understood that HDM will not be obligated to supply more than 125%
of the above the stated minimum quantity for each PRODUCT during any
year, without HDM's prior written consent.
Distributor's Manager __________________________
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IN WITNESS WHEREOF, parties have executed this Agreement as of the date written
above.
CONTEMPORARY INVESTMENTS XXXXXX RESOURCES LIMITED
By /s/ Xxxxx Vozich By /s/ Xxxxxx Xxxxxxxxx
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Print Print
Name Xxxxx Vozich Name Xxxxxx Xxxxxxxxx
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Title Director Title President & CEO
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