Exhibit 10.23
EXCLUSIVE DISTRIBUTION AGREEMENT
BY AND BETWEEN
ULTRASTRIP SYSTEMS, INC.
AND
ROBOTIC ENVIRONMENTAL SERVICES, L.L.C.
MANUFACTURER: DISTRIBUTOR:
UltraStrip Systems, Inc., Robotic Environmental Services, L.L.C.
a Florida Corporation 00000 Xxxxxx Xxxxx
0000 XX Xxxxxx Xxxxxxx Xxxxx Xxxxx, XX 00000
Xxxxxx, Xxxxxxx 00000 Telephone: (000) 000-0000
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
EXCLUSIVE DISTRIBUTOR AGREEMENT Texas/LA
TABLE OF CONTENTS PAGE
Recitals 1
Appointment 1
Term; Option to Renew; Minimum Sales Quota 2
Exclusive Distribution and Services 2
Orders and Prices 3
Payment 3
Delivery; Inventory 4
Training Demonstration and Use of Products 4
Marketing Materials; Official Language 5
Special Projects 6
Distributors Sales and Operational Obligations 6
Insurance 6
Records and Inspections 7
Assignment 8
Trademarks and Patents 8
Confidentiality 9
Default; Notice of Default 10
Termination 10
Suspension of Performance 12
Indemnification 12
Notices 13
Independent Contractor 13
Key Persons 13
Jurisdiction and Venue 14
Applicable Law 14
Compliance with Laws and Regulations 14
Distributors Representations And Warranties 15
Specific Performance; Enforcement 15
Product Warranties 16
Waivers 16
Survival 17
Severability 17
Counterpart 17
Binding Effect 17
Amendments 17
Addendum #1 20
Addendum #2
EXCLUSIVE DISTRIBUTOR AGREEMENT Texas/LA
EXCLUSIVE DISTRIBUTION AGREEMENT
This Agreement, made and entered into this Insert_____ day of ______________,
2001 (the "EFFECTIVE DATE"), by and between ULTRASTRIP SYSTEMS, INC., a Florida
corporation, whose principal office is located at 0000 XX Xxxxxx Xxxxxxx,
Xxxxxx, Xxxxxxx 00000 (the "MANUFACTURER"), and ROBOTIC ENVIRONMENTAL SERVICES,
L.L.C., a limited liability company organized under the laws of Louisiana, whose
principal office is located at 00000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxx, 00000
(the "DISTRIBUTOR"). The Manufacturer and the Distributor are sometimes
collectively referred to as the "Parties" and sometimes individually referred to
as a "Party."
RECITALS
A. Manufacturer manufactures a robotic coating removal device, currently
identified as the ULTRASTRIP ROBOTIC SYSTEM, which system includes the
collective assemblage of equipment identified in the attached Addendum
#1 (collectively, the "PRODUCT or PRODUCTS").
B. Distributor desires to utilize the Products for the purpose of removing
coatings in all non-blue water commercial applications, which include
without limitation, petroleum storage tanks located on land, oil
exploration and production facilities located on and off-shore, and
barges utilized on rivers, but exclude ocean going vessels and
shipyards utilized by ocean going vessels (the "REMOVAL SERVICES" or
"SERVICES").
C. Distributor desires to acquire the exclusive right to (I) distribute
and sell the Products in the States of Texas and Louisiana (the
"TERRITORY"), and (II) utilize the Products for the purpose of
performing Removal Services within the Territory and on oil production
facilities located in the Gulf of Mexico, within one-hundred (100)
miles of the south boundary of the Territory; provided, however,
Distributor shall have no exclusive right to distribute and sell the
Products to, or perform Removal Services for, the owners of ocean going
vessels or shipyards utilized by ocean going vessels (collectively, the
"EXCLUSIVE DISTRIBUTION AND SERVICE RIGHTS", or "EXCLUSIVE
DISTRIBUTORSHIP") . Distributor also desires to acquire an option to be
the exclusive distributor of the Products in the Country of Venezuela
(the "VENEZUELA OPTION"). The terms of the Venezuela Option are set
forth in the attached Addendum #1.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties agree as follows:
1. RECITALS
The foregoing Recitals are true, accurate, and incorporated into this
Agreement.
2. APPOINTMENT
2.1 Subject to the terms of this Agreement, Manufacturer grants
Distributor the Exclusive Distribution and Service Rights for
the Products (including any improvements to said Products now
or hereafter developed by Manufacturer) in the Territory, and
Distributor hereby accepts such appointment (the
"APPOINTMENT").
2.2 The Appointment shall commence upon Distributor's completion
of the preconditions set forth on the schedule attached hereto
as Addendum #1 ("PRECONDITIONS"). In the event Distributor
fails to satisfy the Preconditions within the times and dates
specified, this Agreement shall automatically and immediately
terminate, whereupon the parties shall be relieved of all
further obligation or liability hereunder.
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 1 OF 21 Texas/La
TERM; OPTION TO RENEW; MINIMUM SALES QUOTA
3.1 Unless sooner terminated in accordance herewith, this
Agreement shall commence on the Effective Date and continue
for a Term of five (5) years "(the "TERM"); provided, however,
at any time after the expiration of the third (3rd) year
Distributor shall agree to make such changes or modifications
to the Agreement as (i) may be deemed necessary or desirable
by Manufacturer's bankers or insurance company, or (ii)
facilitate either party's compliance with any law or
regulation; provided, further, Manufacturer shall not change
the location or size of the Territory, charge a fee to renew
the Agreement, or require Distributor to execute an agreement
that is materially different than the most current form of
distribution agreement utilized by Manufacturer in the United
States; provided, however, the Term shall terminate if
Distributor purchases less than the MINIMUM SALES QUOTA (as
defined in Addendum #1); provided, further, the Minimum Sales
Quota may be increased annually, commencing three (3) years
from the Effective Date, to such larger amount as Manufacturer
may require in its reasonable discretion, which shall be based
on (I) Distributor's historic performance in the Territory,
(II) historic performance in other territories, and (III)
projections of future performance, all of which shall not be
unreasonable; provided, however, the parties agree in advance
that the Minimum Sales Quota in year four (4) shall be four
(4) Systems and in year five (5) shall be five (5) Systems per
year. In the event Distributor is not in default of any of its
obligations hereunder sixty (60) days prior to the expiration
of the Term of this Agreement or any renewal thereof,
Manufacturer shall provide Distributor with a copy of its then
current form of Distribution Agreement. Distributor shall have
the option (the "OPTION," or "OPTION TO RENEW") to continue to
function as a distributor of the Products for a term of three
(3) years (each a "RENEWAL TERM"), which Option may be
exercised by executing the then current form of agreement
utilized by Manufacturer and returning same to Manufacturer
prior to the expiration of the Term or, if renewed, any
subsequent Renewal Term.
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 2 OF 21 Texas/La
3.2 Distributor may terminate this Agreement at any time by
providing Manufacturer with not less than thirty (30) days
advance written notice of same.
EXCLUSIVE DISTRIBUTION AND SERVICES
4.1 During the Term of this Agreement (or any renewal thereof),
all Key Persons (as hereinafter defined) and Distributor shall
not in any manner market, utilize, distribute or sell any
products which are competitive with the Products. For purposes
of this Agreement, competitive products shall include without
limitation any equipment, machinery, device, apparatus, or
accessories utilized for the purpose of removing coatings.
4.2. During the Term of this Agreement, Distributor may market,
utilize, distribute or sell the Products in all locations
outside the Territory, so long as Manufacturer does not notify
Distributor of any locations or territories in which it has
appointed a new exclusive distributor or otherwise determined
that it will become the exclusive distributor of its Products
(each an "EXCLUDED TERRITORY"). Within thirty (30) days of
Manufacturer's notice of establishment of a Excluded
Territory, Distributor shall cease and forever terminate any
and all activities involving its utilization, distribution,
marketing or sale of the Products within the Excluded
Territory; provided, however, Distributor shall be entitled to
utilize the Products for the purpose of completing any Removal
Services it became contractually obligated to perform on or
before the date of Manufacturer's notice establishing said
Excluded Territory; provided further, Distributor shall have
no right to continue to provide Removal Services unless
Distributor supplies Manufacturer with a true and correct copy
of any applicable contract for Removal services within ten
(10) days of Manufacturer's notice establishing the Excluded
Territory.
5. ORDERS AND PRICES
5.1 The prices for all Products purchased by Distributor shall be
based on price lists published by Manufacturer, plus all
applicable taxes, fees, duty or other charges imposed by any
government or governmental authority, including without
limitation sales tax. All prices published by Manufacturer
shall be subject to periodic adjustment by Manufacturer.
5.2 All orders for Products shall be in writing, addressed to
Manufacturer, utilizing Manufacturer's approved form for same
(each a "PURCHASE ORDER"). No Purchase Order shall be
effective until accepted by Manufacturer, which acceptance
shall be in writing, addressed to Distributor.
5.3 All prices quoted herein are in United States Dollars. All
prices quoted in any price list now or hereafter published by
Manufacturer shall also be in United States Dollars. All
payments from Distributor to Manufacturer hereunder shall be
in United States Dollars.
6. PAYMENT
6.1 After the Initial Order (as defined in Addendum #1), each
subsequent Purchase Order shall be accompanied by (i) payment
of a deposit (the "DEPOSIT") equal to twenty percent (20%) of
the gross amount of the Purchase Order (the "PURCHASE PRICE"),
and (ii) an irrevocable letter of credit issued by a bank
acceptable to the Manufacturer and Manufacturer's bank,
including terms and conditions acceptable to Manufacturer and
Manufacturer's bank, in an amount not less than the remaining
balance of the Purchase Price, and providing that it may be
immediately drawn upon by Manufacturer in the event said
remaining balance of the Purchase Price is not paid by
Distributor within thirty (30) days of the earlier of (A)
Distributors acceptance of delivery of the Products identified
in
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 3 OF 21 Texas/La
the Purchase Order, or (B) five (5) days after Manufacturer's
notice that the Products identified in the Purchase Order have
been completed and are ready for delivery to Distributor's
freight carrier.
6.2 Every payment by Distributor to Manufacturer hereunder shall
be in U.S. dollars via (A) irrevocable bank letter of credit
issued by a bank acceptable to the Manufacturer and
Manufacturer's bank, (B) bank wire transfer to Manufacturer's
account, or (C) such other financial instrument as may be
acceptable to the Manufacturer, in Manufacturer's sole
discretion.
7. DELIVERY; INVENTORY
7.1 Delivery of all Products shall be given and taken at the
Manufacturer's production facility located at 0000 XX Xxxxxx
Xxxxxxx, Xxxxxx, Xxxxxxx, or such other place as the
Manufacturer shall designate by written notice to Distributor
("MANUFACTURER'S PLANT"). Risk of loss of the Products shall
pass to the Distributor upon delivery of the Products to
Distributor (or Distributor's freight carrier).
7.2 Manufacturer shall have the right to allocate deliveries of
Product among all distributors in the event of a shortage of
supply of Products, in such manner as Manufacturer, in its
sole discretion, shall determine.
8. TRAINING, DEMONSTRATION AND USE OF PRODUCTS
8.1 Distributor will maintain a properly trained sales force of
adequate size to represent and promote sales of the Products
throughout the Territory. Such sales force shall be kept
properly informed as to all of the advertising and marketing
programs and policies of Manufacturer, and shall pursue said
programs and policies in a manner reflecting the high
standards and business reputation of Manufacturer. It is
expressly agreed that, while Manufacturer shall provide
Distributor with technical assistance and copies of all sales
materials it has developed, Distributor shall be responsible
for developing its own marketing plan and system for selling
the Products. Distributor shall at all times conduct its
activities hereunder in strict accordance with all laws and
regulations of the Territory, and consistent with the highest
ethical and commercial standards.
8.2 Distributor shall not demonstrate or permit the use of the
Products by any person(s) other than persons who have
successfully completed the Manufacturer's Training Course as
outlined herein and have been duly certified by the
Manufacturer to operate the Product. At any time after the
first ninety (90) days of this Agreement, Distributor may
develop its own training course utilizing personnel who have
completed Manufacturer's Training Course. In the event
Distributor is able to demonstrate to Manufacturer's
reasonable satisfaction that Distributor's training course
offers competent and thorough instruction in the use of the
Products, Distributor shall thereafter be entitled to permit
the use of the Products by any person(s) who has successfully
completed Distributor's training course and have been duly
certified by the Distributor to operate the Product.
8.3 MANUFACTURER'S TRAINING COURSE. Within thirty (30) days of the
Effective Date hereof, Manufacturer shall provide on-site
training for the benefit of Distributor at Distributor's
principal place of business or such other location as the
parties may agree. Distributor will be solely responsible for
all expenses of Manufacturer's training staff including, but
not limited to, all transportation expenses such as airfare,
suitable lodging of up to $150.00 per day for Manufacturer's
technicians and $250.00 per day for Manufacturer's management
and salespersons ("TRAINING EXPENSES"). Manufacturer shall
calculate all Training Expenses in advance and provide
Distributor with its estimate. Prior to the commencement of
training, Distributor shall pay Manufacturer the estimated
Training Expenses. Upon completion of Manufacturer's
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 4 OF 21 Texas/La
Training Course, Distributor shall be permitted to utilize,
market, distribute and sell the Products.
9. MARKETING MATERIALS; OFFICIAL LANGUAGE
9.1 Manufacturer maintains an inventory of documents, including
without limitation marketing materials, Product literature and
technical materials in both electronic and hard copy formats
(collectively, "MARKETING MATERIALS"), a complete list of
which is set forth in Manufacturer's Marketing Materials
Schedule. The Marketing Materials Schedule is published by
Manufacturer and updated periodically.
9.2 Distributor shall not copy, duplicate, reprint, fax or
otherwise disseminate any Marketing Materials, except as
expressly authorized in the Marketing Materials Schedule.
9.3 Manufacturer will make available to Distributor any item
listed in the Marketing Materials Schedule, subject to the
following conditions:
9.3.1 Marketing Materials in an electronic format are
available to the Distributor at no cost.
9.3.2 Manufacturer agrees to provide an initial inventory
of Marketing Materials, the value of which shall not
exceed $500.00, calculated pursuant to the prices set
forth in the Marketing Material Schedule .
9.3.3 All additional Marketing Materials required by
Distributor shall be available at the prices
specified in the Marketing Materials Schedule.
Payment shall be on the same terms as for payment of
Product.
9.4 The official language of the Manufacturer and this Agreement
is English, and the official version of the Agreement is the
English version.
9.4.1 All communication by and between Distributor and
Manufacturer shall be in English. All documents
prepared in any language other than English and
submitted by Distributor to Manufacturer shall first
be translated into English so that Manufacturer
receives both a copy of the English version of such
document and the version that is not in English.
9.4.2 Marketing Materials in languages other than those
identified in the Marketing Materials Schedule are
available upon request pursuant to the following
conditions:
9.4.2.1 Manufacturer shall oversee and
administer all activities incident
to the translation of any Marketing
Materials, including without
limitation translations into the
desired foreign language, printing
set-up, printing, etc.
9.4.2.2 Distributor shall be responsible for
the fees and costs required to
translate Marketing Materials into
any language not specified in the
Marketing Materials Schedule;
provided, however, Distributor shall
not be responsible for any costs or
fees resulting from the work of
Manufacturer's employees.
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 5 OF 21 Texas/La
10. SPECIAL PROJECTS
10.1 From time to time Distributor may request Manufacturer to
assist with various projects that are not addressed in the
Agreement. Distributor acknowledges that Manufacturer has no
obligation to assist with or otherwise participate in such
projects and that any such assistance or participation is
strictly voluntary and shall not create any obligation or
liability, except as specifically agreed to in writing by
Manufacturer, which writing will state with specificity the
obligations of the parties and the financial contribution of
each, if any.
11. DISTRIBUTORS SALES AND OPERATIONAL OBLIGATIONS
11.1 Sales Activities. Distributor shall use its best efforts to
diligently and systematically (I) solicit, contact and call
upon all potential customers and users of Products located in
the Territory, and (II) advertise and promote the Products
throughout the Territory by all usual and ethical means,
including without limitation advertising and personal
solicitation of customers, demonstration of Products,
processing of orders and customer inquiries or complaints, and
identification of Distributor as a source of Products in
business listings, trade publications, directories, stationary
and advertisements and through distribution of technical
literature, catalogues, brochures, and Marketing Materials, or
similar advertising materials issued or pre-approved in
writing by Manufacturer.
11.2 Marketing Plan. Distributor shall provide Manufacturer on or
before December 1 of each calendar year with an annual
marketing plan for the following year, the form and substance
of which shall be reasonably satisfactory to Manufacturer.
11.3 Facilities. Distributor shall provide an office or place or
places of business and all necessary facilities in the
Territory as required to perform and discharge Distributor's
obligations hereunder, and keep same clean, attractive and in
good condition.
11.4 Sales Personnel. Distributor shall maintain a fully qualified
and effective sales organization, including sufficient
adequately trained, experienced and competent personnel to
perform and discharge Distributor's obligations hereunder.
Distributor shall use its best efforts to cause its personnel
involved in the sale or use of Products to attend all sales
meetings and training sessions conducted by Manufacturer from
time to time, and shall pay all costs to attend such meetings
and sessions, including travel, lodging and food costs for
each attendee; provided, however, Manufacturer shall provide
not less than thirty (30) days advance notice of any such
meeting or session, and in the event one or more of
Distributor's personnel are unable to attend same, Distributor
shall so notify Manufacturer within seven (7) days of
Manufacturer's notice.
12. INSURANCE
12.1 Throughout the Term of this Agreement, Distributor shall
obtain and maintain at all times liability and casualty
insurance ("MINIMUM LIABILITY INSURANCE") in such amounts as
Manufacturer shall specify from time to time, and shall
furnish to Manufacturer within ten (10) days of the Effective
Date of this Agreement a certificate of insurance which names
Manufacturer as an additional insured, evidences that such
insurance is in effect, and provides that it shall not be
canceled, terminated or modified on less than thirty (30) days
prior written notice to Manufacturer (the "CERTIFICATE OF
INSURANCE").
12.2 The Minimum Liability Insurance established as of the
Effective Date of this Agreement is the amount specified in
Addendum #1. Notwithstanding anything to the contrary
contained herein, Manufacturer shall only increase the amount
of Minimum Liability Insurance if it determines that an
increase is necessary for the reasonable protection of the
parties.
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 6 OF 21 Texas/La
13. RECORDS AND INSPECTIONS
13.1 Distributor shall at all times during the Term of this
Agreement and for a period of one (1) year thereafter maintain
accurate books and records sufficient to evaluate
Distributor's performance of, and compliance with, its
obligations under this Agreement. Distributor shall furnish
periodic reports with respect thereto in such form and
including such content as may be reasonably specified by
Manufacturer.
13.2 Distributor shall on a periodic basis (but no more frequently
than quarterly) permit Manufacturer, its agents and
representatives, to inspect Distributor's facilities and
records during regular business hours for the purpose of
ascertaining Distributor's performance of, and compliance
with, its obligations under this Agreement.
13.3 Distributor shall provide Manufacturer with annual financial
statements of Distributor, in form and substance which is
reasonable and satisfactory to Manufacturer, and communicate
to Manufacturer promptly any changes in its financial
condition form that are not reflected in such statements,
excluding changes which are individually, and in the
aggregate, immaterial.
14. ASSIGNMENT
14.1 This Agreement may not be assigned by Distributor to a third
party without the express written consent of Manufacturer and
approval of said third party by Manufacturer, both of which
may be withheld for any reason whatsoever. Notwithstanding the
forgoing, at any time after the third year of the Term,
Distributor may assign the Agreement to a third party (the
"ASSIGNEE"), provided all Key Persons hereunder remain
affiliated with or employed by the Assignee, as applicable,
and continue to perform the same duties and contribute the
same time and resources as they performed or contributed prior
to said assignment, for a period of not less than two years,
after which, provided Distributor is in full compliance with
the terms hereof, all Key Persons shall be relieved from
further obligation hereunder.
15. TRADEMARKS AND PATENTS
15.1. Manufacturer's Trademarks. For purposes of this Agreement, the
term "TRADEMARKS" means the name "UltraStrip," "UltraStrip
M2000," "UHP Pumps," and those trademarks, trade names,
slogans, labels, logos, titles, insignias and other commercial
symbols listed on the attached Exhibit "A", which may be
changed at any time by Manufacturer upon written notice to
Distributor.
15.2 Process Patents. The Distributor expressly agrees to convey to
the Manufacturer all right, title and interest in any process
patents or similar property rights as it relates to the use or
application of the Manufacturer's Products. This provision may
be specifically enforced by the Manufacturer and shall survive
the termination of this agreement, in perpetuity.
15.3 Use of Trademarks. Distributor shall display each of the
Trademarks only on behalf of and for the sole benefit of
Manufacturer, and in such manner and on such terms as
Manufacturer may require or allow in writing. Distributor
shall submit to Manufacturer for approval in writing, prior to
any use, all sales, promotional and advertising materials
referring to Manufacturer or any Products or Trademarks . If
Distributor uses any Trademark in any manner, Manufacturer's
ownership of same shall be clearly indicated. Distributor
shall refrain from using any Trademarks as part of any
corporate, trade or firm name or style of Distributor, or in
connection with the advertisement, promotion, sale or
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 7 OF 21 Texas/La
solicitation for sale of any Product from any place of
business of facility located outside of the Territory.
Distributor shall refrain from using in any way any trade
name, slogans, labels, logos, titles, insignias and other
commercial symbol owned or used by Manufacturer other than the
Trademarks.
15.4 No License. This Agreement shall not be construed as giving
Distributor any right, title or interest in any of the
Trademarks or copyrighted material used or owned by
Manufacturer, but only to permit Distributor to use such
material in conformity with this Agreement, in connection with
the promotion and sale of the Products, and only as long as
this Agreement shall remain in effect.
15.5 Notice of Infringement. Distributor shall promptly notify
Manufacturer in writing of any possible infringement by any
third party of any Trademark or other intellectual property
right of Manufacturer of which Distributor becomes aware, as
well any claim of infringement of any intellectual property
right against Manufacturer or Distributor as the result of any
of Distributor's actions pursuant to this Agreement.
15.6 On Termination. On the termination of this Agreement, all
rights and all privileges granted to Distributor under this
Agreement shall immediately cease, whereupon Distributor shall
discontinue the use of Manufacturer's Trademarks .
16. CONFIDENTIALITY
The Distributor and the Manufacturer acknowledge a duty of
care and confidentiality to each other.
16.1 Trade Secrets. Any of Manufacturer's trade secrets that may
from time to time be made available or become known to
Distributor are to be treated as confidential, are to be used
solely in connection with Distributor's performance under the
terms of this Agreement, and are not to be disclosed to anyone
other than Distributor's employees who have a reasonable need
for access thereto in connection with Distributor's
performance of its duties hereunder. Distributor's performance
of its duties hereunder shall survive the termination of this
Agreement.
16.2 Non-compete. For a period of one (1) year after termination or
expiration of this Agreement, Distributor shall not engage in
the sale or promotion of any product within the Territory that
is competitive with the Products. Throughout the Term hereof
and for a period of one (1) year after termination or
expiration of this Agreement, no Key Person shall engage in
the sale or promotion of any product within the Territory that
is competitive with the Products, or otherwise assist or own
an interest in any venture or business entity that sells or
utilizes products which are competitive with the Products.
16.3 Business information. All business information provided by
either party to the other, including but not limited to
present or prospective customers, management information
reports, contracts, operational methods, plans or strategies,
and other business affairs of either party, are and shall be
treated as confidential both during and after the Term of this
Agreement. Such information shall not be disclosed by
Distributor to any person, except for officers and employees
of Distributor requiring such information or materials to
perform services pursuant to this Agreement, and shall not be
used for the benefit of Distributor except in connection with
distribution activities under this Agreement. Distributor
shall require all of its officers, employees and Key Persons
to whom such information is disclosed to sign an agreement
containing these terms, to maintain the confidentiality of
such information and materials and not to disclose such
information to others. Distributor shall be liable to
Manufacturer for damages caused by any breach of this
provision. In addition to any other rights or remedies that
may be available to
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 8 OF 21 Texas/La
Manufacturer, Manufacturer shall be entitled to appropriate
injunctive relief or specific performance against Distributor
or its officers and employees to prevent a breach of this
provision. Distributor acknowledges and agrees that any breach
of this provision will cause irreparable injury to
Manufacturer and that money damages are not an adequate
remedy. If Manufacturer enforces its rights hereunder,
Manufacturer shall be entitled to recover from Distributor its
costs, expenses and attorney's fees. On termination of this
Agreement, Distributor shall deliver to Manufacturer all such
confidential information and materials, together with all
copies thereof.
17. DEFAULT; NOTICE OF DEFAULT
17.1 Any party who fails to keep or perform any of its material
obligations hereunder shall be in default of this Agreement.
Within thirty (30) days of becoming aware of any event of
default, the non-defaulting party shall provide the defaulting
party with notice of same, which notice shall include a
detailed description of the failure which constitutes said
default and a statement of what, if anything, can be done to
cure said default (the "NOTICE OF DEFAULT"). Any action
arising hereunder or related in any way hereto against
Manufacturer shall be brought within one (1) year after the
occurrence giving rise to the claim, or be barred forever. If
Distributor shall be in default hereunder, Manufacturer may,
without notice to Distributor, decline to make further
shipments of Product until the default is corrected.
18. TERMINATION
18.1 For Cause; Right to Cure. Manufacturer may terminate this
Agreement thirty (30) days after written notice by mail or fax
to the Distributor given at any time after the occurrence of
any of the following events: (I) Distributor's breach or
failure to comply with any term of this Agreement; (II)
Distributor's failure to pay Manufacturer any sums due
pursuant to the terms of this Agreement, or (III)
Distributor's becoming insolvent or unable to pay its
obligations as they become due. the Distributor shall have
thirty (30) days from the date of such written notice to cure
such default.
18.2 For Cause; No Right to Cure. Manufacturer may terminate this
Agreement immediately on notice by Manufacturer to Distributor
at any time after the occurrence of any of the following
events: (i) Distributor's voluntary abandonment of the
Distributorship to which it has been appointed hereunder, (ii)
Distributor's breach or violation of Section 8, 9, 11, 12, or
13, (iii) Distributor's knowingly or purposeful falsification
of any records or reports submitted to Manufacturer, (iv)
Distributor's act or failure to act which damages
Manufacturer's reputation of Products, (v) Distributor's
failure to comply with any law or regulation in connection
with its obligations hereunder, (vi) the sale, distribution,
or any other disposition of substantially all of Distributor's
assets, other than as an assignment or transfer of the
complete Agreement, and (vii) Distributors failure to purchase
the Minimum Sales Quota in any specified period.
18.3 Termination Consequences. The following shall govern the
rights, duties and obligations of the parties upon expiration
or termination of this Agreement:
18.3.1 Obligations of Distributor. Termination shall not
release or affect, and this Agreement shall remain
fully operative as to, any obligations of or
liabilities incurred by Distributor prior to the
effective date of such termination; provided,
however, that all indebtedness of Distributor to
Manufacturer of any kind shall become immediately due
and payable on the effective date of termination, and
Manufacturer may deduct from any sums it owes
Distributor, any sums owed by Distributor to
Manufacturer.
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 9 OF 21 Texas/La
18.3.2 Cease As Distributor. Distributor shall cease and
desist immediately and permanently all use of, and
shall thereafter not use in any manner, the Marketing
Materials or Trademarks, as well as any name,
trademark, trade name, slogan, title, label,
insignia, commercial symbol or anything else which
would be likely to lead to confusion or uncertainty
as to whether Distributor is an authorized
distributor of the Products. If requested by
Manufacturer, Distributor shall notify its customers,
sub-distributors and others that it has ceased to be
a distributor of the Products.
18.3.3 Return of Property. Immediately after the effective
date of expiration or termination, Distributor shall
return any property of Manufacturer, together with
all manuals, books, catalogs, reference books,
bulletins, mailing lists, pamphlets, Marketing
Materials, and other materials of any kind previously
supplied to Distributor by Manufacturer, including
all copies, reproductions and translations thereof.
18.3.4 Purchase Orders. Any Purchase Orders received by
Manufacturer from Distributor, whether or not
accepted by Manufacturer, which have not been shipped
prior to the effective date of the termination, may,
at Manufacturer's option, be rejected or filled, and
if filled, shall only be filled on terms of cash in
advance or manufacture or shipment.
18.3.5 No Termination Compensation. Neither Distributor nor
Manufacturer shall, by reason of the termination or
expiration of this Agreement, be liable to the other
for any termination payment, compensation or benefit
of any kind, or reimbursement for any damages,
whether direct, indirect, special, incidental or
consequential or whether on account of the loss of
prospective profits on anticipated sales, loss of
reputation, goodwill or customers, expenditures,
investments, leases, or other commitments of any kind
made in connection with the business of Manufacturer,
Distributor or otherwise, and, to the extent each may
lawfully do so, Distributor and Manufacturer hereby
waive and renounce any right to receive any such
payment or benefit under any law, regulation, or
rule, including without limitation any Law of the
Territory.
19. SUSPENSION OF PERFORMANCE
19.1 Whenever performance by either party of any of its
obligations, other than the obligation to make payment of
money due hereunder, is substantially prevented by reason of
any act of God, strike or other industrial disturbance, lack
of materials, law, regulation, war or war conditions, or by
reason of any other matter beyond the control of the parties,
then such performance shall be excused during the continuance
of such prevention and for a reasonable time thereafter;
provided, however, the party asserting a right to suspend
performance shall have provided notice to the other party
within seven (7) days of the incident asserted as the reason
for the suspension of performance.
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 10 OF 21 Texas/La
20. INDEMNIFICATION
20.1 By Distributor. Distributor shall indemnify and save
Manufacturer, its officers and shareholders, harmless from and
against any loss, claim or damage, including reasonable
attorney's fees, resulting from Distributor's breach of this
Agreement, or demonstration, use, marketing, sale or
distribution of the Products.
20.2 By Manufacturer. Manufacturer shall indemnify and save
Distributor, its officers and shareholders harmless from and
against any loss, claim or damage, including reasonable
attorney's fees, resulting from any breach of the warranty
provided herein by Manufacturer; provided that Distributor
shall be entitled to the benefits of such indemnification only
to the extent that (I) prompt written notice is given to
Manufacturer of any claim, action, suit or proceeding
(including any investigation) in respect of which Manufacturer
may be called on to indemnify Distributor as aforesaid, (II)
Distributor's liability in respect of such loss, claim or
damages is not covered by any insurance policy required
hereunder or any recovery hereunder is less than the amount
(including attorney's fees) of Distributor's liability in
respect of such loss, claim or damages, (III) Manufacturer
shall have the exclusive right to assume Distributor's defense
in any such threatened or actual litigation including the
selection of counsel and the hiring of all experts,
consultants, and other persons in the course of an actual or
threatened litigation, and (IV) Manufacturer shall have sole
and exclusive control of the defense of any threatened or
actual litigation, including all strategy decisions up through
and including the time of trial, as well as all appellate
processes, and the terms of settlement of the litigation.
21. NOTICES
21.1 All notices, requests, consents and other communications
required or permitted to be given under this Agreement will be
in writing (including telefax or telecopy) and shall be sent
by certified mail, postage prepaid, return receipt requested,
or delivered by a recognized national overnight courier
service, or shall be sent by electronic communication,
addressed to the address shown at the beginning of this
Agreement, or to any other address or addresses as any party
may designate from time to time by notice given in accordance
with this Section. Any such notice shall be deemed delivered:
(A) on the date upon which the return receipt is signed or
delivery is refused or the notice is designated by the postal
authority as not deliverable, as the case may be if mailed,
(B) on the date of delivery of a recognized international
courier service, or (C) on the date of transmission if sent by
electronic communication; provided, however, any electronic
notice or Purchase Order sent to Manufacturer shall not be
deemed delivered or accepted until delivery or acceptance is
formally acknowledged by return notice from Manufacturer to
Distributor.
22. INDEPENDENT CONTRACTOR
22.1 Nothing herein shall be deemed to constitute Manufacturer and
Distributor as partners or otherwise associated in or with the
business of the other. Distributor is and shall always remain
an independent contractor and neither party shall be liable
for any debts, obligations or liabilities of the other.
Neither party is authorized to incur debts or other
obligations of any kind on the part of or as agent for the
other. It is expressly recognized that no fiduciary
relationship exists between the parties. Distributor is in no
respect an agent, employee or legal representative of
Manufacturer and shall not hold itself out as such for any
purpose whatsoever. Distributor shall not sign Manufacturer's
name or the name of any director, officer, employee or other
agent of Manufacturer to any instrument of other document.
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 11 OF 21 Texas/La
23. KEY PERSONS
23.1 All Key Persons (as hereinafter defined) who have executed
this Agreement, represent and warrant that (I) they constitute
all officers and directors of Distributor, and all
shareholders owning more than five percent (5%) of the capital
stock of Distributor (each a "KEY PERSON"), and (II) that
Distributor is duly authorized to enter into this agreement
and that no further approval or consent is required. All Key
Persons have joined in the execution of this Agreement for the
purpose of guaranteeing Distributors performance and
obligating themselves to comply with the following provisions
of the Agreement: SECTION 4 (Exclusive Distribution and
Services); SECTION 8 (Training and Demonstration of Products);
SECTION 9 (Marketing Materials; Official Language); SECTION 15
(Trademarks and Patents); Section 16 (Confidentiality, Trade
Secrets, Non-compete, and Business Information), SECTION 17
(Default); SECTION 18 (Termination); SECTION 22 (Independent
Contractor); SECTION 24 (Jurisdiction and Venue); SECTION 25
(Applicable Law); SECTION 26 (Compliance with Laws and
Regulations); SECTION 28 (Specific Performance); SECTION 29
(Product Warranty); SECTION 30 (Waivers); XXXXXXX 00
(Xxxxxxxx); Xxxxxxx 00 (Xxxxxxx Xxxxxx); and Section 35
(Amendments). All Key Persons shall comply with and abide by
the forgoing Sections to the same extent as Distributor.
Notwithstanding anything to the contrary contained herein,
this Section shall survive any termination of this Agreement.
23.2 Distributor shall immediately notify Manufacturer of all
persons who hereafter become Key Persons. Distributor shall
cause any new Key Person to acknowledge in writing their
obligation to comply with the above-mentioned sections of the
Agreement (the "KEY PERSON ADDENDUM"). The Key Person Addendum
shall be in such form and include such content as Manufacturer
may reasonable require. The Key Person Addendum must be
executed by the new Key Person and returned to Manufacturer
within seven (7) days of Distributors receipt of same.
24. JURISDICTION AND VENUE
24.1 Each of the parties irrevocably and unconditionally (A) agrees
that any suit, action or legal proceeding arising out of or
relating to this agreement will be brought in the courts of
the State of Florida in Palm Beach County or the court of the
United States, Southern District of Florida; (B) submits and
consents to the exclusive jurisdiction of each court in any
suit, action or proceeding; (C) waives any objection which it
may have to the laying of venue of any suit, action or
proceeding in any of the courts; and (D) agrees that service
of process or any other court paper may be effected on such
party by mail in accordance with the provisions of Section 21
hereof, or in such other manner as may be provided under
applicable Florida State laws or court rules.
25. APPLICABLE LAW
25.1 This Agreement and any question concerning its validity,
construction, or performance shall be governed by the laws of
the State of Florida, irrespective of the place of execution,
or the place or places of performance.
26. COMPLIANCE WITH LAWS AND REGULATIONS
26.1 Distributor acknowledges that it is responsible for complying
with all governmental laws, ordinances, rules and regulations
of the Territory ("LAWS"), including without limitation all
Laws which may govern (I) the importation, transportation,
storage, marketing, distribution, sale, use and disposal of
Products in the Territory, and (II) Distributor's fulfillment
of its obligations under this Agreement, including but not
limited to the payment of any duties and taxes (excluding
Manufacturer income taxes), obtaining of any
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 12 OF 21 Texas/La
governmental permits or approvals, compliance with customs
requirements or testing of any Products. Distributor shall
cooperate fully with Manufacturer in complying with any
governmental agency order or rule, which may obligate
Manufacturer to remedy any problem with, or defect in, any
Products located in the Territory, including identification of
the specific location of any such Products.
27. DISTRIBUTORS REPRESENTATIONS AND WARRANTIES
27.1 Distributor represents, warrants and agrees that it has full
right and authority to enter into this Agreement. If
Distributor is a corporation or limited liability company,
Distributor makes the following additional representations and
warranties to Manufacturer:
(a) Corporate Existence. Distributor is a corporation or
limited liability company duly organized and validly existing
under the laws of the State of Louisiana. Distributor has all
requisite power and authority to carry on its business as now
being conducted, or a contemplated hereby.
(b) Authorization. The execution, delivery and performance of
this Agreement have been duly authorized and approved by the
board of directors and shareholders or members of Distributor,
and constitutes the valid and binding agreement of
Distributor, enforceable in accordance with its terms.
c) Not Subject to Third Party Approval. The execution and
delivery of this Agreement by Distributor and the consummation
of the transactions contemplated hereunder, will not require
the authorization, consent or approval of any third party,
including any governmental subdivision or regulatory agency.
28. SPECIFIC PERFORMANCE; ENFORCEMENT
28.1 Each of the parties acknowledges that damages at law would be
an inadequate remedy if this Agreement is not specifically
enforced. Therefore, in the event of a breach or threatened
breach by any party of any provision of this Agreement, the
other party shall be entitled, in addition to all other rights
and remedies, to injunctions restraining such breach, without
being required to post any bond or other security, and/or to a
decree of specific performance of the provisions of this
Agreement.
28.2 In the event Manufacturer incurs any cost, expense or
professional fees (including without limitation court costs
and attorney's fees) associated with the enforcement of this
Agreement (collectively, "Enforcement Costs"), Distributor
shall promptly reimburse Manufacturer, or Manufacturer shall,
at its option, have the right to deduct such Enforcement Costs
or Damages from any monies payable to Distributor hereunder.
29. PRODUCT WARRANTY
29.1 Manufacturer warrants to Distributor that the Products were
manufactured in accordance with their written specifications
when shipped to Distributor, and that for the first ninety
(90) days after delivery to Distributor the Products shall be
free from such material defect as would render the Products
unsuitable for use in the normal course; provided, however,
this limited warranty shall only apply if: (I) the Products
are used and maintained by Distributor as directed by all
applicable documentation and instructions issued by
Manufacturer and any warranty claim is unrelated to the
negligence, accident or act of Distributor or any third party;
(II) Distributor has paid Manufacturer all sums due hereunder;
(III) the Products have not in any way been modified; and (IV)
any warranty claim is unrelated to the failure of Products to
function in accordance with Manufacturer's specifications, or
to any Products normally consumed during use; provided,
further,
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 13 OF 21 Texas/La
Distributor shall immediately notify Manufacturer of any
defect giving rise to a warranty claim, whereupon Manufacturer
shall have a reasonable period of time to repair or cure said
defect, failing which the subject Products shall be returned
to Manufacturer, and Manufacturer shall thereafter refund the
Purchase Price to Distributor.
29.2 Distributor's sole remedy under or related to this Agreement
shall be a refund.
29.3 OTHER THAN THE LIMITED WARRANTY DESCRIBED ABOVE, PRODUCTS ARE
PROVIDED HEREUNDER ON AN "AS IS" BASIS AND MANUFACTURER MAKES
NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, MERCHANTABILITY, HIDDEN DEFECTS, DURABILITY,
SUITABILITY, OR PRODUCT'S FITNESS FOR ANY PARTICULAR PURPOSE,
COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE,
NON-INFRINGEMENT OR OTHERWISE, AND MANUFACTURER HEREBY
DISCLAIMS ANY SUCH REPRESENTATION OR WARRANTY. MANUFACTURER
SHALL NOT UNDER ANY CIRCUMSTANCES BE RESPONSIBLE FOR ANY LOSS
OR DAMAGE, INDIRECT, SPECIAL, ORDINARY, EXEMPLARY,
CONSEQUENTIAL OR OTHERWISE, ARISING OUT OF THE TRANSACTIONS
CONTEMPLATED HEREUNDER. UNDER NO CIRCUMSTANCES SHALL
MANUFACTURER'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR
RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT PAID BY
DISTRIBUTOR TO MANUFACTURER.
29.4 Manufacturer agrees to provide copies of all available
warranties from manufacturers of components utilized in the
Products.
30. WAIVERS
30.1 The failure or delay of any party at any time to require
performance by another party of any provision of this
Agreement, even if known, will not affect the right of that
party to require performance of that provision or to exercise
any right, power or remedy, and any waiver by any party of any
breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach
of the provision, a waiver of the provision itself, or a
waiver of any right, power or remedy under this Agreement.
31. SURVIVAL
31.1 All covenants, agreements, representations and warranties made
in this Agreement or otherwise made in writing by any party
pursuant to this Agreement will survive the termination or
execution and delivery of this Agreement and the consummation
of the transactions contemplated.
32. SEVERABILITY
32.1 If any provision of this Agreement is contrary to, prohibited
by or deemed invalid under applicable law or regulation, only
that provision will be inapplicable and deemed omitted to the
extent it is contrary, prohibited or invalid, but the
remainder will not be invalidated and will be given full force
and effect so far as possible.
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 14 OF 21 Texas/La
33. COUNTERPARTS
33.1 This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
34. BINDING EFFECT
34.1 All of the terms and provisions of this Agreement are binding
upon, inure to the benefit of, and are enforceable by the
parties and their respective legal representatives, successors
and permitted assigns.
35. AMENDMENTS
35.1 The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing
signed by the party as to whom enforcement is sought and
making specific reference to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WITNESSES: "DISTRIBUTOR"
Robotic Environmental Services, L.L.C., a
corporation organized under the laws of
Louisiana
/s/ Xxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
----------------- ------------------
Xxxx Xxxxxx, President
/s/ Xxxxx X. Xxxxxxx
--------------------
(CORPORATE SEAL)
WITNESSES: "MANUFACTURER"
ULTRASTRIP SYSTEMS, INC., a corporation
organized under the laws of Florida
/s/ Xxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------- ---------------------
Xxxxxx Xxxxxxx, President
/s/ Xxxxx X. Xxxxxxx
--------------------
(CORPORATE SEAL)
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 15 OF 21 Texas/La
WITNESSES: "KEY PERSONS"
/s/ Xxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxx
--------------------- ---------------------
/s/ Xxxxxxx Xxxxx
---------------------
/s/ Xxxxx X. Xxxxxxx /s/ R.C.
--------------------- ----------------------
/s/ Xxxxxxx Xxxxx
---------------------
/s/ Xxxxx X. Xxxxxxx /s/ J. R. Xxxxx
--------------------- -----------------------
/s/ Xxxxxxx Xxxxx
---------------------
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
--------------------- -----------------------
/s/ Xxxxxxx Xxxxx
---------------------
/s/ Xxxxx X. Xxxxxxx /s/ Xxxx X. Bamagh
--------------------- -----------------------
/s/ Xxxxxxx Xxxxx
---------------------
/s/ Xxxxx X. Xxxxxxx /s/ Xxx.X. Xxxxxx
--------------------- -----------------------
/s/ Xxxxxxx Xxxxx
---------------------
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxxx
--------------------- -----------------------
/s/ Xxxxxxx Xxxxx
---------------------
/s/ Xxxxx X. Xxxxxxx /s/ W. Xxxx Xxxxxx
--------------------- -----------------------
/s/ Xxxxxxx Xxxxx
---------------------
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 16 OF 21 Texas/La
ADDENDUM #1
1. ULTRASTRIP ROBOTIC SYSTEM. For purposes of this Agreement, the
UltraStrip Robotic System (the "SYSTEM") includes the equipment
identified as follows:
(a) One (1) UltraStrip M2000 Robot, with controls.
(b) One (1) UHP pump, in container, including spare parts selected
by Manufacturer.
(c) One (1) vacuum and filtration system, in container.
(d) Various hoses and accessories, as selected by Manufacturer
2. "PRECONDITIONS". The Appointment shall commence upon Distributor's
completion of the following preconditions (the "PRECONDITIONS"), and
Manufacturer's issuance of written confirmation of same
("MANUFACTURER'S CONFIRMATION"):
(a) On or before the execution of this Agreement, Distributor
shall deliver to Manufacturer true and correct copies of it's
Financial Statements and Balance Sheet for the most recent two
(2) years, which documents shall be subject to Manufacturer's
review and approval, in Manufacturer's sole and absolute
discretion.
(b) Commencing one (1) day from the Effective date and ending 45
days thereafter, or upon completion of the Distributor's first
coatings removal job, whichever is the earliest, (the "TRIAL
PERIOD"), Distributor shall use the System for the purpose of
performing one (1) or more coating removal jobs. At the
inception of the Trial Period, Distributor's operating
personnel shall attend an instructional course at The Robotics
Institute, which will qualify them, upon the successful
completion of the course, to safely and properly use the
System. All use of the System during the Trial Period shall be
under the supervision and direction of Manufacturer's
personnel, whose decisions respecting the operation and use of
the System shall be controlling. At any time prior to the
expiration of the Trial Period either party may terminate this
Agreement for any reason whatsoever by providing the other
with written notice of same. Within five (5) days of the
commencement of the Trial Period Distributor shall pay
Manufacturer the sum of $5000.00 as reimbursement to
Manufacturer for its costs to transport the System (the "TRIAL
FEE"). In addition, the Distributor shall reimburse the
Manufacturer for expenses incurred by Manufacturer's personnel
in training Distributor's personnel on site during the
Distributor's first job as per Para. 8.3.
(c) Within seven (7) days of the expiration of the Trial Period
Distributor shall (I) pay Manufacturer the sum of $850,000.00,
representing the purchase price of one (1) System (the
"INITIAL Order"), and (II) deliver the Certificate of
Insurance to Manufacturer. Payment shall be in U.S. dollars
via bank wire transfer to Manufacturer's account.
3. MINIMUM SALES QUOTA. In addition to the Initial Order, the minimum
number of Systems Distributor shall purchase from Manufacturer (the
"MINIMUM SALES QUOTA") during the first three (3) years of the Term
(commencing from the Effective Date) shall be as follows:
(a) Five (5) Systems within the first two (2) years of this
Agreement (for a total number of six (6) Systems including the
initial order to be purchased in the first two (2) years),
with Distributor's Purchase Order for the first three (3)
Systems due on or before six (6) months from the Effective
Date hereof, and subsequent Purchase Orders for each of the
remaining three (3) Systems due every six (6) months
thereafter, and
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 17 OF 21 Texas/La
(b) Three (3) Systems within the third (3rd) year of this
Agreement, with Distributor's Purchase Order for the first
System due on or before twenty-five (25) months from the
Effective Date hereof, and subsequent Purchase Orders for each
of the remaining two (2) Systems due every four (4) months
thereafter.
Notwithstanding the forgoing, each of the above-mentioned dates upon
which Distributor shall be obligated to pay for each System (each a "DUE DATE")
may be extended as follows:
(i) In the event Distributor acquires any System in advance of the
Due Date, Distributor shall receive a credit equal to the
number of days in advance of the Due Date it paid for such
System (a "CREDIT(S)").
(ii) In addition to the aforementioned Credit, at the commencement
of each year of the Term hereof, Distributor shall receive a
total of ninety (90) days additional Credit, which may be
utilized to extend any subsequent Due Date.
All Credits, which are not utilized by Distributor in any year of the
Term, may be accumulated and thereafter utilized in subsequent years for the
purpose of extending any Due Date. Manufacturer shall compute and keep records
of all Credits, and in the event of a dispute between Distributor and
Manufacturer respecting the total number of Credits or their application,
Manufacturer's records shall be controlling and final.
4. "MINIMUM LIABILITY INSURANCE" - Minimum Liability Insurance shall be
$5,000,000.00 US dollars.
5. VENEZUELA OPTION. In the event Distributor pays Manufacturer for at
least four (4) Systems on or before June 30, 2002, Manufacturer shall
offer Distributor the opportunity to become its exclusive distributor
of Products for the territory of Venezuela (the "VENEZUELA OPTION). The
Venezuela Option shall be subject to Distributors execution of
Manufacturer's INTERNATIONAL EXCLUSIVE DISTRIBUTOR AGREEMENT, which
shall include without limitation, provision for Minimum Sales Quotas in
such amounts as may be determined by Manufacturer in Manufacturer's
sole and exclusive opinion.
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 18 OF 21 Texas/La
ADDENDUM #2
TO
EXCLUSIVE DISTRIBUTION AGREEMENT
This Xxxxxxxx # 0 shall amend the Exclusive Distribution Agreement and
Addendum #1 (collectively, the "AGREEMENT"). In the event of a conflict between
the Agreement and this Addendum #2, Adendum #2 shall control. Except as
specifically amended hereby, all terms and conditions of the Agreement shall
remain in full force and effect.
I. The Distributor shall be designated as Robotic Environmental Services,
LLC , a limited liability company organized under the laws of
Louisiana, whose principal office is located at 00000 Xxxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxxxx 00000.
II. Section 4.1 is replaced and amended by the following Section 4.1:
"During the Term of this Agreement (or any renewal thereof), all Key
Persons (as hereinafter defined) and Distributor shall not in any
manner market, utilize, distribute or sell any products which are
competitive with the Products. For purposes of this Agreement,
competitive products shall include without limitation any ultra high
pressure water equipment, machinery, device, apparatus, or accessories
utilized for the purpose of removing coatings."
III. The following Section 4.3 is added to the Agreement:
"During the term of this Agreement or any extension hereof,
Manufacturer shall provide in any sale or lease of Products to any
person or entity who is not an exclusive distributor that said person
or entity shall not sell, lease, or perform Removal Services in the
Territory, without the specific written consent of Distributor;
provided, however, the parties agree that in the event Manufacturer
sells or leases Products to a person or entity located outside the
Territory, said person or entity may perform Removal Services for its
existing customers with facilities, ships or equipment located in the
Territory, and any such services shall not be deemed to infringe upon
or otherwise violate the Exclusive Distribution and Service Rights
granted hereby."
IV. Section 28.2 is replaced and amended by the following Section 28.2:
In the event either party incurs any cost, expense or professional fees
(including without limitation court costs and attorney's fees)
associated with the enforcement of this Agreement (collectively,
"ENFORCEMENT COSTS"), the defaulting party shall promptly reimburse the
non-defaulting party, or the non-defaulting party shall, at its option,
have the right to deduct such Enforcement Costs or Damages from any
monies payable to the defaulting party hereunder.
ROBOTIC ENVIRONMENTAL SERVICES, LLC ULTRASTRIP SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------ ------------------
Xxxx Xxxxxx, Xxxxxx Xxxxxxx,
Manager President
Date: Sept. 7, 2001 Date: Sept. 11, 2001
------------- --------------
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 19 OF 21 Texas/La
ADDENDUM #3
TO
EXCLUSIVE DISTRIBUTION AGREEMENT
This Xxxxxxxx # 0 shall amend the Exclusive Distribution Agreement and
Addendum #1 and Addendum #2 (collectively, the "AGREEMENT"). In the event of a
conflict between the Agreement and this Addendum #3, Addendum #3 shall control.
Except as specifically amended hereby, all terms and conditions of the Agreement
shall remain in full force and effect.
I. The Distributor shall pay Manufacturer $850,000.00 for the initial
Product purchase.
II. Additional Product purchases will be sold to Distributor by
Manufacturer at a twelve (12%) percent discount from Manufacturer's
retail price.
III. Manufacturer will agree that units two (2), three (3), and four (4)
will not exceed $968,000.00 net cost to Distributor after twelve (12%)
percent discount from Manufacturer's retail price. Manufacturer agrees
that the wholesale price for units five (5), six (6), seven (7), and
eight (8) will not exceed ten (10%) over the maximum wholesale price
for units two (2), three (3), and four (4).
IV. Manufacturer recommends that Distributor should not sell Product at
more than three (3%) below Manufacturer's suggested retail price.
Should Distributor desire to sell Product to a customer outside the
Territory, Manufacturer would address that issue under Article 10.1.
Special Projects would consider the customer's location and whether or
not Distributor would train and service customer or if a "finder's fee"
commission would be paid to Distributor.
ROBOTIC ENVIRONMENTAL SERVICES, LLC ULTRASTRIP SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------ ------------------
Xxxx Xxxxxx, Xxxxxx Xxxxxxx,
Manager President
Date: Sept. 7, 2001 Date: Sept. 11, 2001
------------- --------------
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 20 OF 21 Texas/La
ADDENDUM #4
TO
EXCLUSIVE DISTRIBUTION AGREEMENT
This Addendum #4 shall amend the Exclusive Distribution Agreement and
previous addendums (collectively, the "AGREEMENT"). In the event of a conflict
between the Agreement and this Addendum #4, Addendum #4 shall control. Except as
specifically amended hereby, all terms and conditions of the Agreement shall
remain in full force and effect.
I. Distributor and Manufacturer agree that this signed Addendum signifies
the end of the Trial Period.
II. Distributor accepts the equipment delivered as the Initial Order.
III. The Distributor agrees that the results of the Trial Period are
acceptable and the Agreement is now in full force and effect.
ROBOTIC ENVIRONMENTAL SERVICES, LLC ULTRASTRIP SYSTEMS, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------ ------------------
Xxxx Xxxxxx, Xxxxxx Xxxxxxx,
Manager President
Date: 9-27-01 Date: 9-28-01
------- -------
N:\ATTY\WJH\ultraaddendum2.wpd(1864.000)gca-doc96
IV. Distributor agrees to send equipment back to Pittsburgh, PA for all
upgrades Manufacturer deems necessary. All expenses to transport
equipment from Baton Rouge to Pittsburgh and back to Baton Rouge are
borne by Manufacturer. All upgrades to equipment will also be at
Manufacturer's expense. Manufacturer further agrees that Distributor
has seven (7) days to pay for equipment after it returns to Baton Rouge
from Pittsburgh. Completion of upgrades including transportation will
be limited to ten (10) calendar days.
EXCLUSIVE DISTRIBUTION AGREEMENT PAGE 21 OF 21 Texas/La
