EXHIBIT 10.20
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of the Effective Date
(as defined in subsection 12(d) hereof) by and between Thermo
Environmental Instruments Inc., a California corporation having an
office and place of business at 00 Xxxxx Xxxxxxx, Xxxxxxxx,
Xxxxxxxxxxxxx 00000 (hereinafter referred to as "Manufacturer"), and
ADA-ES, Inc., a Colorado corporation having an office and place of
business at 0000 XxxxxXxxx Xxx, X, Xxxxxxxxx, Xxxxxxxx 00000
(hereinafter referred to as "Distributor").
WITNESSETH
WHEREAS, in connection with the development of a continuous
emission monitoring system for monitoring mercury as set forth in the
Development and Field Evaluation Agreement of even date hereof,
Manufacturer will make and sell products for continuous monitoring of
emissions of mercury, and components thereof, as set forth in Exhibit A
(hereinafter referred to as "Products"), such Exhibit A attached to and
forming an integral part of this Agreement, and which may be amended
from time to time by Manufacturer in its sole discretion;
WHEREAS, Distributor makes and sells systems for removing mercury
from flue gas streams (hereinafter referred to as Flue Gas Mercury
Control Technology or "FGMCT"); and
WHEREAS, the parties desire that Distributor purchase Products
from Manufacturer for resale with, and/or to purchasers of, FGMCT;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions herein contained, and intending to be legally
bound hereby, the parties mutually agree as follows:
1. Appointment and Territory.
(a) Manufacturer hereby appoints Distributor on a non-exclusive
basis as a distributor of the Products. Distributor shall use its
reasonable commercial efforts to promote and sell the Products to the
maximum number of coal-fired utilities investing in FGMCT for mercury
removal in North America (the "Territory").
(b) Distributor shall sell Products only in conjunction with
its FGMCT and only for delivery to and use in the Territory. For
avoidance of doubt, the parties agree that the preceding sentence means
that "stand-alone" sales of Products by Distributor are prohibited.
(c) Distributor acknowledges and agrees that Manufacturer
retains the right to directly or indirectly sell Products to third
parties, including within the Territory. Manufacturer shall, however,
use reasonable commercial efforts not to interfere with or prejudice
Distributor's efforts to sell Products in the Territory as provided in
this Agreement.
(d) Distributor shall not solicit or accept orders for Products
from any prospective purchaser with a principal place of business
located outside the Territory, or for delivery and/or use outside the
Territory. If Distributor receives any such order or inquiry for
Products from a prospective purchaser, Distributor shall immediately
refer that order or inquiry to Manufacturer. Distributor shall not
deliver or tender (or cause to be delivered or tendered) any Product
outside of the Territory, or to a purchaser if Distributor knows or has
reason to believe that such purchaser intends to remove that Product
from the Territory.
2. Prices and Payment.
(a) Distributor shall order Products from Manufacturer by
submitting a written purchase order identifying the Products ordered,
requested delivery date(s) and any other information required to enable
Manufacturer to fill the order. All orders for Products are subject to
acceptance by Manufacturer's Director of Customer Service at
Manufacturer's office at 00 Xxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx.
Manufacturer shall have no liability to Distributor with respect to
purchase orders which are not accepted; provided, however, that
Manufacturer will not unreasonably reject any purchase order for
Products which does not require any modifications or additions in order
to meet the specifications of Distributor or its customers.
Manufacturer may reject, in its sole discretion, any order for
customized products.
(b) The prices for Products covered by a purchase order
accepted in accordance with subsection 2(a) above shall be those in
Manufacturer's published price list less a discount of twenty-five
percent (25.0 %). Manufacturer's net distributor prices are F.O.B.
Manufacturer's plant in Franklin, Massachusetts. The above discount
structure is based on minimum purchases by Distributor of ten (10)
Products per year commencing on the date of Distributor's first
purchase of a Product; if Distributor purchases less than such minimum
quantity during any year, then at the written request of Manufacturer
made within three (3) months following the end of such year, the
discount structure will be renegotiated.
Manufacturer may from time to time change the prices set forth in its
published price list, such change being effective immediately upon
Distributor's receipt of notice thereof; provided, however, that no
price change shall affect purchase orders submitted by Distributor and
accepted by Manufacturer prior to the date such price change becomes
effective.
(c) Distributor shall be free to establish its own pricing for
Products it sells. Distributor shall notify Manufacturer of its
pricing, as in effect from time to time.
(d) Distributor hereby agrees: (i) to comply with all decrees,
statutes, rules and regulations of the government of the United States
and agencies thereof; (ii) to maintain the necessary records to comply
with such decrees, statues, rules and regulations; (iii) to not export
any Products except in compliance with such decrees, statutes, rules
and regulations; (iv) to indemnify and hold harmless Manufacturer from
any and all fines, damages, losses, costs and expenses (including
reasonable attorneys' fees) incurred by Manufacturer as a result of any
breach of this subsection by Distributor or any of Distributor's
customers.
(e) Unless Distributor requests otherwise, all Products ordered
by Distributor shall be packed for shipment and storage in accordance
with Manufacturer's standard commercial practices. It is Distributor's
obligation to notify Manufacturer of any special packaging requirements
(which shall be at Distributor's expense). Manufacturer shall deliver
Products into the possession of a common carrier designated by
Distributor, no later than the date specified for such delivery on the
relevant purchase order for such Products. Risk of loss and damage to
a Product shall pass to Distributor upon the delivery of such Product
to the common carrier designated by Distributor. All claims for non-
conforming shipments must be made in writing to Manufacturer within
fifteen (15) days of the passing of risk of loss and damage, as
described above. Any claims not made within such period shall be
deemed waived and released.
(f) All amounts due and payable with respect to a Product
delivered by Manufacturer in accordance with the preceding subsection
shall be paid in full within thirty (30) days after Distributor's
receipt of invoice covering such Product or shipment, whichever is
later; provided, however, that Manufacturer reserves the right to
require payment in advance of part or all of the purchase price of
Products if in its reasonable judgment this is necessary to ensure
timely payment. No part of any amount payable to Manufacturer
hereunder may be reduced due to any counterclaim, set-off, adjustment
or other right which Distributor might have against Manufacturer, any
other party or otherwise.
(g) Distributor hereby grants to Manufacturer a purchase money
security interest in the Products delivered by Manufacturer in
accordance with this Section and all proceeds thereof, for the full
amount of the purchase price and any costs and charges incurred by
Manufacturer in connection therewith. At Manufacturer's request, (i)
Distributor shall sign any documents, including one or more financing
statements, and take any other action required by law to perfect the
security interest granted hereunder; and (ii) if Distributor has failed
to perform hereunder, Distributor shall assemble the collateral and
deliver the collateral to the possession of Manufacturer at
Manufacturer's principal office or other location designated by
Manufacturer. Manufacturer is hereby appointed Distributor's attorney-
in-fact, with full power of substitution, to take the following actions
in the event of Distributor's default hereunder or Distributor's
refusal to comply with any reasonable request of Manufacturer
hereunder; (i) to do any act which Distributor is obligated to do
hereby; (ii) to enforce all of Distributor's rights in the collateral
hereunder; (iii) to collect the collateral and proceeds; and (iv) to
execute and file in Distributor's name any financing statements and
amendments thereto or continuations thereof. Manufacturer shall have
no duty to take any of the foregoing actions. This is a power of
attorney coupled with an interest and is irrevocable.
(h) All amounts due and owing to Manufacturer hereunder but not
paid by Distributor on the due date thereof shall bear interest at the
rate of the lesser of: (i) twelve per cent (12%) per annum; and (ii)
the maximum lawful interest rate permitted under applicable law. Such
interest shall accrue on the balance of unpaid amounts from time to
time outstanding from the date on which portions of such amounts become
due and owing until payment thereof in full.
(i) In the event of any discrepancy between any purchase order
accepted by Manufacturer and this Agreement, the terms of this
Agreement shall govern.
(j) Products purchased and sold hereunder shall be subject to
the terms and conditions attached hereto as Exhibit B, attached to and
forming an integral part of this Agreement, except that in the event of
any discrepancy between the terms and conditions of Exhibit B and those
elsewhere in this Agreement, the latter shall govern.
3. Other Obligations of Distributor.
(a) Distributor shall install the Products on the premises of
its customers and shall train its customers to operate the Products.
Distributor shall employ competent and experienced service personnel,
provide appropriate service shop facilities, and maintain an adequate
stock of spare parts so as to render prompt and adequate service to the
users of the Products in the Territory.
(b) Distributor shall provide Manufacturer with advance copies
of all advertising and marketing materials to be used by Distributor
for approval by Manufacturer, which shall not be unreasonably withheld
or delayed.
(c) Distributor shall submit a rolling 12-month sales forecast
to Manufacturer every three months commencing on the April 1st, July
1st, October 1st or January 1st first following the Effective Date (or,
if the Effective Date is within 30 days before any of such dates,
commencing on the second such date after the Effective Date). Such
sales forecast shall include, as applicable, quantities,
configurations, expected order dates, expected shipping dates and
expected spare parts requirements. If the most recent forecast becomes
materially inaccurate at any time, Distributor shall promptly provide
Manufacturer with updated information. The sales forecast shall be for
planning purposes only and Distributor is not required to purchase the
Products projected to be sold on the sales forecast.
(d) Distributor shall keep Manufacturer advised of general
market and other developments that may affect the sale of Products in
the Territory, as well as information on competitive products and
activities which come to its attention.
(e) Distributor shall not take (or permit any third party to
take on its behalf) any of the following actions without Manufacturer's
prior written approval, which approval may be withheld in
Manufacturer's absolute discretion: (i) make any information about
Manufacturer available on the Internet; (ii) link any site on the
Internet to any site on the Internet established, operated or sponsored
by Manufacturer; or (iii) use any of the Marks (as defined in Section
4) on any site on the Internet.
4. Trademarks and Trade Names.
(a) Domain Names, Marks, Corporate Names and Meta-Tags. In no
event shall Distributor: (i) establish, operate, sponsor or contribute
content to any site on the Internet which incorporates the word
"thermo", any of Manufacturer's trademarks, service marks or trade
names (the "Marks") or any variation or part of such word or Xxxx as
its URL address or any part of such address; (ii) register any domain
name which incorporates the word "thermo" or the Marks (and Distributor
hereby agrees to transfer such domain name to Manufacturer if it
breaches this provision); (iii) register any of Manufacturer's Marks or
any Marks that are confusingly similar to any of the word "thermo" or
Manufacturer's Marks; (iv) form (or change the name of) any corporation
or other entity under or to a name which incorporates any of the word
"thermo" or Manufacturer's Marks; or (v) upon termination or expiration
of this Agreement, use "thermo", any Marks or any variation thereof or
part thereof as a meta-tag in order to attract visitors to any site on
the Internet.
(b) Equitable Relief. Distributor acknowledges and agrees
that due to the unique nature of domain names, there can be no adequate
remedy at law for any breach of its obligations under this Section,
that any such breach may allow Distributor or third parties to unfairly
compete with Manufacturer, and therefore, that upon any such breach or
any threat thereof, Manufacturer shall be entitled to appropriate
equitable relief in addition to whatever remedies it might have at law.
Distributor shall notify Manufacturer in writing immediately upon the
occurrence of any such breach or any threat thereof of which it is
aware.
5. Manufacturer's Obligations.
(a) Manufacturer shall provide Distributor with such marketing
and technical assistance and free Product samples as Manufacturer may
in its discretion consider necessary to assist with the promotion of
the Products.
(b) Manufacturer shall provide training to Distributor's
personnel in connection with the marketing, sale, installation,
maintenance and support of the Products; provided, however, that
Manufacturer's personnel shall spend no more than 80 man-hours of their
time per year in providing such assistance. Any additional support
requested by Distributor shall be provided at Manufacturer's standard
rates.
6. Relationship of the Parties.
(a) Distributor and Manufacturer each shall be considered to be
an independent contractor. The relationship shall not be construed to
be that of employer and employee, nor to constitute a partnership,
joint venture or agency of any kind.
(b) Distributor agrees to pay all of its incurred expenses,
including without limitation all travel, lodging and entertainment
expenses. Manufacturer shall not reimburse Distributor for any of
those expenses.
(c) Distributor shall have no right to enter into any contracts
or commitments in the name of, or on behalf of, Manufacturer, or to
bind Manufacturer in any respect whatsoever.
(d) Except with respect to warranties consistent with those
referred to in Section 10 of this Agreement, Distributor shall not
obligate or purport to obligate Manufacturer by issuing or making any
affirmations, representations, warranties or guaranties with respect to
the Products to any third party.
7. Field Assistance.
Manufacturer shall provide, in its discretion, appropriate field
technical assistance to Distributor and Distributor's customers.
8. Trademarks, Service Marks and Trade Names.
(a) Right to Use. Distributor may use the Marks listed below
on a non-exclusive basis in the Territory only for the duration of this
Agreement and solely for display or advertising purposes in connection
with selling and distributing the Products in accordance with this
Agreement:
Thermo Environmental Instruments Inc.
Thermo Electron Corporation
Any other trademarks which are currently owned by Thermo, or are later
adopted by Thermo for the Mercury CEM and are distinct from trademarks
of ADA-ES
Distributor shall not at any time do or permit any act to be done which
may in any way impair the rights of Manufacturer in the Marks.
(b) Quality Control. In order to comply with Manufacturer's
quality control standards, Distributor shall: (i) use the Marks in
compliance with all relevant laws and regulations; (ii) accord
Manufacturer the right to inspect during normal business hours, without
prior advance notice, Distributor's facilities used in connection with
efforts to sell the Products in order to confirm that Distributor's use
of such Marks is in compliance with this provision; and (iii) not
modify any of the Marks in any way and not use any of the Marks on or
in connection with any goods or services other than the Products.
9. Covenant Not to Compete.
During the term of this Agreement and for two (2) years after a
termination by Distributor pursuant to Subsection 12(c) or 12(e) or a
termination by Manufacturer pursuant to Subsection 12(a), Distributor
shall not market directly or indirectly in the Territory on a "stand-
alone" basis products which are competitive with the Products.
10. Limited Warranty.
(a) As to all components of the Products manufactured by
Manufacturer, Manufacturer makes the warranties set forth in Exhibit B,
attached to and forming an integral part of this Agreement. As to all
components of the Products manufactured by any entity other than
Manufacturer, Manufacturer extends to Distributor all transferable
warranties as to such components provided by such other entity to
Manufacturer for the length of time that such warranty remains valid
for Manufacturer. The time and scope of the warranties described in
Exhibit B shall not exceed the time and scope of any warranties granted
by Distributor to any purchaser of such Product.
(b) Under no circumstances shall the warranties set forth in
Exhibit B apply to any Product which has been used with unapproved
assemblies or sub-assemblies or to any Product which has been
customized or modified other than by Manufacturer, or damaged or
misused. Notwithstanding any other provision in this Agreement,
Manufacturer shall not be held responsible for any damage which may
result from a defective part except for the replacement of such part as
set forth in Exhibit B.
(c) THE PROVISIONS OF THE FOREGOING WARRANTIES ARE IN LIEU OF
ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL
(INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE).
MANUFACTURER'S LIABILITY ARISING OUT OF THE MANUFACTURE, SALE OR
SUPPLYING OF THE PRODUCTS OR THEIR USE OR DISPOSITION, WHETHER BASED
UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL
PURCHASE PRICE PAID BY DISTRIBUTOR FOR THE PRODUCTS. IN NO EVENT SHALL
MANUFACTURER BE LIABLE TO DISTRIBUTOR OR ANY OTHER PERSON OR ENTITY FOR
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE)
ARISING OUT OF THE MANUFACTURE, SALE OR SUPPLYING OF THE PRODUCTS OR
THEIR USE OR DISPOSITION, EVEN IF MANUFACTURER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR LOSSES.
11. Indemnification.
Distributor shall indemnify, protect and save Manufacturer, its
affiliates and all officers, directors, employees and agents thereof
(hereinafter referred to as "Indemnitees") harmless from all claims,
demands, suits or actions (including attorneys' fees incurred in
connection therewith) which may be asserted against Manufacturer for
any kind of damages, including but without limitation damage or injury
to property or persons but excluding incidental and consequential
damages, which may be sustained by any third party or any of the
Indemnitees occurring out of or incident to the conduct of
Distributor's operations under this Agreement, including but without
limitation any independent representations of Distributor.
Manufacturer shall indemnify, protect and save Distributor, its
affiliates and all officers, directors, employees and agents thereof
(hereinafter referred to as "Indemnitees") harmless from all claims,
demands, suits or actions (including attorneys' fees incurred in
connection therewith) which may be asserted against Distributror for
any kind of damages, including but without limitation damage or injury
to property or persons but excluding incidental and consequential
damages, which may be sustained by any third party or any of the
Indemnitees occurring out of or incident to the conduct of
Manufacturer's operations under this Agreement, including but without
limitation any independent representations of Manufacturer.
12. Termination.
(a) Upon the occurrence of a breach or default as to any
obligation hereunder by either party and the failure of the breaching
party to cure (within thirty (30) days after receiving written notice
thereof from the non-breaching party) such breach or default, this
Agreement may be terminated by the non-breaching party by giving
written notice of termination to the breaching party, such termination
being immediately effective upon the receipt of such notice of
termination.
(b) Upon the filing of a petition in bankruptcy, insolvency or
reorganization against or by either party, or either party becoming
subject to a composition for creditors, whether by law or agreement, or
either party going into receivership or otherwise becoming insolvent
(such party hereinafter referred to as the "insolvent party"), this
Agreement may be terminated by the other party by giving written notice
of termination to the insolvent party, such termination immediately
effective upon the receipt of such notice of termination.
(c) Upon one hundred and twenty (120) days prior written notice
to the other party, this Agreement may be terminated by either party,
with or without cause.
(d) The term of this Agreement shall begin on the later of the
dates that (i) Manufacturer executes this Agreement and (ii)
Distributor executes this Agreement (the later of such dates being
referred to as the "Effective Date").
(e) Unless this Agreement is terminated early pursuant to any
of subsections (a), (b), or (c), this Agreement shall continue for an
initial term of one (1) year from the Effective Date and thereafter
shall automatically continue for additional one-year terms; provided,
however, that either party may terminate this Agreement, with or
without cause, at the end of a current term by giving the other party
at least sixty (60) days prior written notice.
(f) In the event of a termination pursuant to any of
subsections (a), (b), (c), or (e) above, Manufacturer shall not have
any obligation to Distributor, or to any employee of Distributor, for
compensation or for damages of any kind, whether on account of the loss
by Distributor or such employee of present or prospective sales,
investments, compensation or goodwill.
(g) Notwithstanding anything else in this Agreement to the
contrary, the parties agree that Sections/subsections 2(d), 2(f), 2(g),
2(h), 2(i), 2(j), 3(e), 4, 6, 8, 9, 10, 11, 12(f), 12(g),13, 16-24, 26,
and 28 shall survive the termination of this Agreement to the extent
required thereby for the full observation and performance by any or all
of the parties hereto.
13. Repurchase of Inventory.
(a) Upon termination of this Agreement, Manufacturer shall have
the option to repurchase Distributor's inventory of Products. Within
thirty (30) days after such termination, Manufacturer shall elect in
writing to either: (i) permit Distributor to sell off its remaining
inventory of Products; provided, however, that Distributor shall comply
with all terms and conditions of this Agreement restricting such
reselling activities in effect immediately prior to termination; or
(ii) repurchase Distributor's inventory of Products which are saleable
and in the original packages and unaltered from their original form and
design, subject to Manufacturer's inspection, test, and acceptance.
(b) If this Agreement is terminated by Manufacturer, any such
repurchase of Distributor's inventory of Products shall be at the net
price for which Distributor originally purchased the Products, less a
twenty five percent (25 %) handling charge. Repurchased inventory
shall be shipped by Distributor freight prepaid, according to
Manufacturer's instructions. Manufacturer shall pay Distributor for
such repurchased Products within thirty (30) days after Manufacturer
receives those Products in one of its facilities.
14. Publicity
Before either Manufacturer or Distributor issues any publication,
publicity, or advertising using the name of the other party, such
issuing party shall obtain the prior written consent of the other
party, which shall not unreasonably be withheld.
Distributor agrees that any publicity or advertising which shall
be released by it in which Manufacturer is identified in connection
with the Products shall be in accordance with the terms of this
Agreement and with any information or data which Manufacturer has
furnished in connection with this Agreement. Copies of all such
publicity and advertising shall be forwarded promptly to Manufacturer.
15. Modification.
No modification or change may be made in this Agreement except by
a written instrument signed by duly authorized representatives of
Manufacturer and Distributor.
16. Assignment.
This Agreement and the rights and obligations hereunder may not
be assigned, delegated or transferred by either party without the prior
written consent of the other party; provided, however, that
Distributor's consent shall not be required with respect to any
assignment, delegation or transfer by Manufacturer to any Affiliate of
Manufacturer, as defined in Section 29 hereof. This Agreement shall
inure to the benefit of the successors and assigns of Manufacturer.
17. Export Compliance.
A. U.S. Export Laws and Regulations. Distributor
acknowledges that each Product and any related software and technology,
including documents and other material containing technical data and
other information (collectively "Items"), may be subject to export
controls of the U.S. government. Such export controls may include, but
are not limited to, those of the Export Administration Regulations of
the U.S. Department of Commerce (the "EAR"), which may restrict the
export of Items from the United States and their re-export from other
countries. Distributor shall comply with the EAR and all other United
States laws, regulations, laws, treaties, and agreements relating to
the export or re-export of any Item, and without limiting the
foregoing, shall not, without first obtaining permission to do so from
the appropriate U.S. government agencies, export any Item to any person
(i) whose privileges to participate in U.S. exports have been denied,
or (ii) who is a specially designated national of Cuba, Iran, Libya, or
Sudan, or (iii) whom Distributor knows intends to transfer the Item to
a person within the foregoing (i) or (ii) or to use or allow others to
use the Item for activities related to weapons or their delivery.
Distributor shall cooperate fully with Manufacturer in any official or
unofficial audit or inspection related to the export control laws or
regulations of the U.S. government.
B. Non-U.S. Approvals. Distributor shall obtain and
maintain, at its own expense, any non-United States governmental
consents, authorizations, approvals, filings, permits, or licenses
required for it to export or import any Product or other Item and for
each of Distributor and Manufacturer to exercise its rights and to
discharge its obligations under this Agreement including, without
limitation, all consents of and filings with any non-United States
governmental body.
C. Indemnification. Distributor agrees to indemnify and hold
Manufacturer harmless from, or in connection with, any violation of
the provisions of this Section by Distributor or its employees,
consultants, agents, or customers.
18. Notices.
All notices given under this Agreement shall be in writing and
shall be addressed to the parties at their respective addresses set
forth below or at such other address as either party shall notify the
other in writing:
If to Manufacturer: Thermo Environmental Instruments Inc.
Twenty Seven Forge Parkway
Franklin, MA 02038, U.S. A.
Attention: Xxxxxxx X. Xxxxxxxx, Director of
Marketing
with a copy to: Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: General Counsel
If to Distributor: ADA-ES, Inc.
0000 XxxxxXxxx Xxx, X
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx - President
Notices shall be sent by registered or certified mail, postage prepaid
and return receipt requested, or by Federal Express or other comparable
courier providing proof of delivery, and shall be deemed duly given and
received (i) if mailed, on the third business day following the mailing
thereof, or (ii) if sent by courier, the date of its receipt (or if not
on a business day, the next succeeding business day).
19. Waiver.
None of the conditions or provisions of this Agreement shall be
held to have been waived by any act or knowledge on the part of either
party, except by an instrument in writing signed by a duly authorized
officer or representative of such party. Further, the waiver by either
party of any right hereunder or the failure to enforce at any time any
of the provisions of this Agreement, or any rights with respect
thereto, shall not be deemed to be a waiver of any other rights
hereunder or any breach or failure of performance of the other party.
20. Resolution of Disputes; Waiver of Jury Trial.
This Agreement and performance of the parties hereto shall be
construed and governed according to the laws of Commonwealth of
Massachusetts, applicable to contracts made and to be fully performed
therein. The Manufacturer and the Distributor hereby submit to the
exclusive jurisdiction of the federal and state courts located in
Boston, Massachusetts over any claim or dispute arising out of this
Agreement. In the event of any legal proceeding between the
Manufacturer and Distributor relating to this Agreement, neither party
may claim the right to a trial by jury, and both parties waive any
right they may have under applicable law or otherwise to a right to a
trial by jury. Any action arising under this Agreement must be brought
within two years from the date that the cause of action arose.
21. Confidentiality Maintained.
(a) Distributor agrees that Manufacturer has a proprietary
interest in any information provided to Distributor by Manufacturer,
whether in connection with this Agreement or otherwise, whether in
written or oral form, which is a trade secret, confidential or
proprietary information (hereinafter referred to as "Proprietary
Information"). Distributor shall disclose the Proprietary Information
only to those of its agents and employees to whom it is necessary in
order properly to carry out their duties as limited by the terms and
conditions hereof. Both during and after the term of this Agreement,
all disclosures by Distributor to its agents and employees shall be
held in strict confidence by such agents and employees. During and
after the term of this Agreement, Distributor, its agents and employees
shall not use the Proprietary Information for any purpose other than in
connection with Distributor's sale and distribution of the Products
pursuant to this Agreement. Distributor shall, at its expense, return
to Manufacturer any Proprietary Information in written form as soon as
practicable after the termination or expiration of this Agreement. All
such Proprietary Information shall remain the exclusive property of
Manufacturer during the term of this Agreement and thereafter. This
Section 21 shall also apply to any consultants or subcontractors that
Distributor may engage in connection with its obligations under this
Agreement.
(b) Manufacturer agrees that Distributor has a proprietary
interest in any information provided to Manufacturer by Distributor,
whether in connection with this Agreement or otherwise, whether in
written or oral form, which is a trade secret, confidential or
proprietary information (hereinafter referred to as "Proprietary
Information"). Manufacturer shall disclose the Proprietary Information
only to those of its agents and employees to whom it is necessary in
order properly to carry out their duties as limited by the terms and
conditions hereof. Both during and after the term of this Agreement,
all disclosures by Manufacturer to its agents and employees shall be
held in strict confidence by such agents and employees. During and
after the term of this Agreement, Manufacturer, its agents and
employees shall not use the Proprietary Information for any purpose
other than in connection with Manufacturer's sale and distribution of
the Products pursuant to this Agreement. Manufacturer shall, at its
expense, return to Distributor any Proprietary Information in written
form as soon as practicable after the termination or expiration of this
Agreement. All such Proprietary Information shall remain the exclusive
property of Distributor during the term of this Agreement and
thereafter. This Section 21 shall also apply to any consultants or
subcontractors that Manufacturer may engage in connection with its
obligations under this Agreement.
(c) Notwithstanding anything contained in this Agreement to the
contrary, Distributor shall not be liable for a disclosure of the
Proprietary Information of Manufacturer, if the information so
disclosed: (i) was in the public domain at the time of disclosure
without breach of this Agreement; or (ii) was known to or contained in
records of Distributor at the time of disclosure by Manufacturer to
Distributor and can be so demonstrated; or (iii) becomes known to
Distributor from a source other than Manufacturer that, to the best
knowledge of the Distributor, does not have an obligation to maintain
the confidentiality of such information; or (iv) was disclosed pursuant
to a court order or as otherwise compelled by law.
22. Entire Agreement.
This Agreement constitutes the entire understanding between
Manufacturer and Distributor with respect to its subject matter and
cancels and supercedes all prior verbal agreements and all other
written agreements with respect to such subject matter, except that
the Confidentiality Agreement of October 10, 2003 and the Development
and Field Evaluation Agreement of even date hereof between Manufacturer
and Distributor shall remain in force in accordance with their terms.
In the event of any conflict between the terms of this Agreement and
those of any other document such as a purchase order or quote, the
terms of this Agreement shall control unless the other document makes
specific reference to this Agreement and is signed by both Manufacturer
and Distributor.
23. No Rights by Implication.
No rights or licenses with respect to the Products or the Marks
are granted or deemed granted hereunder or in connection herewith,
other than those rights expressly granted in this Agreement.
24. Responsibility for Taxes.
Taxes now or hereafter imposed with respect to the transactions
contemplated hereunder (with the exception of income taxes or other
taxes imposed upon Manufacturer and measured by the gross or net income
of Manufacturer) shall be the responsibility of Distributor, and if
paid or required to be paid by Manufacturer, the amount thereof shall
be added to and become a part of the amounts payable by Distributor
hereunder.
25. Modification of Products.
Distributor may not customize, modify or have customized or
modified any Product unless it obtains the prior written consent of
Manufacturer, which consent may be withheld in the sole discretion of
Manufacturer. Any unauthorized customizing or modification of any
Product by Distributor or any third party shall relieve Manufacturer
from any obligation it would otherwise have had with respect to such
Product under the warranties
described in Exhibit B hereto.
26. Force Majeure.
(a) Neither Manufacturer nor Distributor shall be liable in
damages, or shall be subject to termination of this Agreement by the
other party, for any delay or default in performing any obligation
hereunder if that delay or default is due to any cause beyond the
reasonable control and without fault or negligence of that party;
provided that, in order to excuse its delay or default hereunder, a
party shall notify the other of the occurrence or the cause, specifying
the nature and particulars thereof and the expected duration thereof,
and shall use its best efforts to mitigate the duration and effect of
such cause; and provided, further, that within fifteen (15) calendar
days after the termination of such occurrence or cause, such party
shall give notice to the other party specifying the date of termination
thereof. All obligations of both parties shall return to being in full
force and effect upon the termination of such occurrence or cause
(including without limitation any payments which became due and payable
hereunder prior to the termination of such occurrence or cause).
(b) For the purposes of this Section, a "cause beyond the
reasonable control" of a party shall include, without limiting the
generality of the phrase, any act of God, act of any government or
other authority or statutory undertaking, industrial dispute, fire,
explosion, accident, power failure, flood, riot or war (declare or
undeclared).
27. Severability.
If any provision of this Agreement is declared invalid or
unenforceable by a court having competent jurisdiction, it is mutually
agreed that this Agreement shall endure except for the part declared
invalid or unenforceable by order of such court. The parties shall
consult and use their best efforts to agree upon a valid and
enforceable provision which shall be a reasonable substitute for such
invalid or unenforceable provision in light of the intent of this
Agreement.
28. Counterparts.
This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
29. Definition of Affiliates.
For the purposes of this Agreement, "Affiliates" shall mean all
companies, natural persons, partnerships, and other business entities
controlled by, under common control with or controlling either party to
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
Distributor:
ADA-ES, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Name Xxxxxxx X. Xxxxxx
Title: President
Date: April 16, 2004
Manufacturer:
Thermo Environmental Instruments Inc.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: General Manager, Air Quality Instruments
Date: April 14, 2004
