Exhibit 10.1
Humitech, Inc. Distributor Agreement dated October 1, 2001 with HUMICO, Inc.
HUMITECH, INC.
DISTRIBUTOR AGREEMENT
This Agreement ("Agreement") made on this date of October 1, 2001 by and between
Humitech, Inc., having its principal place of business at 00000 Xxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx, 00000, ("Distributor") herein, and HUMICO, Inc.,
having its principal place of business at 000 Xxxxx Xxxxxxxxx Xx., Xxxxxxx
Xxxxx, XX 00000 ("Company") herein, collectively the "Parties" and individually
a "Party", herein, mutually agree as follows:
1. RELATIONSHIP
Company grants and the Distributor accepts:
1.1. The right to purchase all Company Refrigeration Products,
current or future brand name labeled as "Humitech Panels"
directly from Company, at the price and terms outlined in the
most current published Company distributor price pages
attached as Exhibit "A".
1.2. The right to stock, display, promote and aggressively sell the
Products to customers who are within the Distributor's
marketing area.
2. DISTRIBUTOR DUTIES AND OBLIGATIONS
The Distributor shall:
2.1. Arrange for Company training for Distributor owners, sales
managers, sales staff, sales associates and technical staff to
occur within 45 days of signing this Agreement at Distributor
cost.
2.2. Develop and implement a proactive business plan, which
Distributor and Company will agree upon.
2.3. Actively promote the Products to potential customers through
periodic mailings, promotions or other accepted marketing
practices.
2.4. Assign the responsibility for the success of the Products to
at least one sales person who will be the specialist and
champion for these products.
2.5. Maintain a reasonable inventory of the Products, to facilitate
customer satisfaction.
2.6. Comply with all federal, state, and local laws, regulations,
statues, etc., affecting the performance of business and this
Agreement.
3. COMPANY DUTIES AND RESPONSIBILITIES
The Company shall:
3.1. Support the Distributor efforts through various marketing
initiatives, Product brochures, Product trend and technology
correspondence, in-house training and other efforts deemed
beneficial to the growth of the distributor business.
3.2. Furnish other support and marketing materials at cost to
Distributor.
3.3. Maintain reasonable levels of standard Product stock to
facilitate prompt deliveries.
3.4. Keep abreast of market and Product trends and inform the
Distributor of new opportunities.
3.5. Notify Distributor of policy, pricing and other changes or
practices that may affect business, markets and the customer,
etc., thirty (30) days prior to the change.
3.6. Comply with all applicable federal, state and local laws,
regulations, statute, etc., affecting the performance of
business and this Agreement.
4. COST AND EXPENSES
Each party shall be solely responsible for all costs and expenses
incurred by it in performing its duties under this Agreement,
including, but not limited to, salaries, employee commissions,
advertisements, promotions, travel, delays, etc., unless otherwise
stated and agreed to by all parties involved.
5. PATENTS AND TRADEMARKS
Distributor agrees not to contest the validity of any licenses,
patents, trademarks and/or rights thereto now or hereafter used or
claimed by the Company and to notify the Company promptly of any
infringement thereof by others whenever such acts come to the attention
of the Distributor.
6. INDEMNIFICATION
Distributor shall defend, indemnify and hold harmless the Company, its
representatives, agents and employees from and against all claims,
damages, losses and expenses arising out of the Distributor's sale or
use of the Products, except for consequential damages or gross
negligence on the part of the Company.
7. SALES TERRITORY
7.1. The Distributor may market the Products and be the exclusive
Distributor within the geographical area considered to be the
Distributor's marketing area, ("Sales Territory") including
branch operations, unless otherwise indicated as an appendix
or note to this agreement.
7.2. The Distributor understands and accepts that other
wholesalers, distributors, retail merchandiser have been
clients of the Company ("Clients"). These clients are to
remain the sole clients of the Company and are exempt from the
exclusivity granted Distributor. These clients are reflected
in Exhibit "B" attached hereto.
7.3. Humitech, Inc. may expand Distributor's Sales Territory based
on area potentials, previous agreements, marketing policy, and
the effectiveness of current distributors. .
8. TERM AND TERMINATION
8.1. This Agreement shall be binding for a period of five (5) years
from the date of execution and shall automatically renew and
extend for consecutive three year terms if notification to the
contrary is not given thirty (30) days before the anniversary
date.
8.2. This Agreement may be terminated or modified as follows:
a) Immediately by a Party upon written notice to other
Party in the event the Party is adjudicated as
bankrupt, becomes insolvent or makes an assignment
for the benefit of creditors.
b) By either Party upon ninety (90) days written notice
if the other Party is in material breach of any of
the terms of this Agreement, Or by not purchasing
20,000 commercial panels as required annually.
c) Upon termination, Distributor shall return all books
and records of Company to headquarters via prepaid
freight.
9. ADDITIONAL PROVISIONS
9.1. CHANGES IN DESIGN. The Company may make reasonable changes of
any kind without notice and deliver revised designs or models
of the Products against any order accepted by Company. will
not be responsible to the Distributor in any way for any
inventory in the Distributor's possession of prior models of
the Product or manufactured under prior design or
specifications.
9.2. FORCE MAJEURE. The Parties shall not be liable for any delay
in the delivery or sale of any Products if such delay is due
to any cause beyond the reasonable control of the Party In the
event of any such delay, the dates for performance by the
Party shall be extended for a period equal to the time lost by
reason of such delay.
9.3. DISTRIBUTOR NOT AGENT. Distributor is an independent
contractor and shall not be considered in any respect an agent
or representative of the Company and the Distributor shall not
represent or hold out itself or its agents or representatives
as the agents or representatives of the Company.
9.4. ASSIGNABILITY. This Agreement may not be assigned or otherwise
transferred by the Distributor without prior written consent
by the Company. Any purported attempt to assign or transfer
this Agreement without Company prior written consent shall be
null and void.
9.5. WARRANTY. The warranty for the Products is set forth in the
Product Literature and Installation, Operation and Maintenance
manuals.
9.6. NOTICES. Any notice required or permitted hereunder shall be
sufficient if sent by first-class mail, postage prepaid to the
other party at the address specified herein, except that any
notice of termination or other pertinent responsibilities, may
be by certified mail, return receipt requested. Either party
may designate a new address for the purposes of notice by
certified mail, return receipt requested.
9.7. GOVERNING LAW. This Agreement shall be construed and the
relations between the parties determined in accordance with
the laws of the State of Texas.
9.8. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties and supersedes all prior agreements,
representations, promises and understandings, whether written
or oral, which have been made in connection with the subject
matter hereof. Any terms and conditions on any purchase order
or other document issued by the Distributor shall be
inapplicable to any sale of Products pursuant to this
Agreement.
9.9. BINDING EFFECT. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by and against the parties
hereto and their respective heirs, successors, personal
representatives, legal representatives and assigns.
9.10. CAPTIONS. The headings used in this Agreement are for
illustrative purposes only, the wording in the paragraphs will
control.
9.11. ARBITRATION. The Parties agree to submit any disputes arising
from this Agreement to binding Arbitration in lieu of other
legal means of resolutions. The Parties agree that the
Arbitration will be held in Dallas Texas under the control of
the American Arbitration Association or equivalent, if not
available.
ACCEPTED BY: (DISTRIBUTOR)
X.X. Comu CEO Xxxx Xxxxxxx Owner
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Print or Type Name Title Print or Type Name Title
/s/X.X. Comu 12.12.01 /s/ Xxxx Xxxxxxx 12/19/01
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Signature Date Witness Date
/s/ Xxxx TJ 12-20-01
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Executive Vice President
Additional notice to:
APPROVED BY: COMPANY
Xxxx Xxxxxxxx Xxxxxxx, Chairman Address for notice:
000 Xxxxx Xxxxxxxxx Xx
Xxxxxxx Xxxxx, XX 00000
/s/ Xxxx Xxxxxxxx Xxxxxxx 12/19/01
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Signature Date
APPENDIX "A"
PRICING
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RESIDENTIAL PANELS $6.00/EA.
COMMERCIAL PANELS $17.00/EA.
VOLUME DISCOUNTS
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MINIMUM ORDER OF 2000 UNITS:
RESIDENTIAL PANELS $6.00/EA.
COMMERCIAL PANELS $15.00/EA.
ALL PRICES, F.O.B. LOS ANGELES, CA
EXHIBIT "B"
FOLLOWING CLIENTS - PROPERTY OF THE COMPANY.
1. 100 MILE RADIUS AROUND THE CITY OF LOS ANGELES AND LA COUNTY.
2. State of Hawaii
EXHIBIT "C"
SALES TERRITORY
DISTRIBUTOR SHALL BE GRANTED EXCLUSIVE DEALER DISTRIBUITOR FOR THE HUMITECH
PANELS FOR ALL THE CONTIGIOUS STATES IN THE UNITED STATES OF AMERICA AND CANADA.
DISTRIBUTOR SHALL ALSO HAVE FIRST RIGHT OF REFUSAL TO ENTER INTO AGREEMENT TO BE
GRANTED EXCLUSIVE LICENSE RIGHTS TO FOREIGN MARKETS ON AN AS DEEMED AND
NECESSARY BASIS.
EXCLUSIVE RIGHTS IN THE NOTED TERRITORY SHALL BE DEEMED THAT ALL SALES IN THIS
MARKET SHALL BE GRANTED TO DISTRIBUTOR AND COMPANY SHALL BE RESTRICTED FROM
SIGNING ANY NEW DISTRIBUTORS PROVIDED THE DISTRIBUTOR HAS ACHIEVED THE ANNUAL
SALES COMMITMENTS.
EXHIBIT "D"
MINIMUM ANNUAL PURCHASE COMMITMENT
DISTRIBUTOR HEREBY AGREES TO PURCHASE A MINIMUM OF 20,000 COMMERCIAL PANELS FOR
FISCAL YEAR ENDING DECEMBER 31, 2002.
EXHIBIT "E"
MINERAL RIGHTS
DISTRIBUTOR AND COMPANY AGREE TO AN EXCHANGE OF STOCK FOR MINERAL RIGHTS OF THE
FOLLOWING. IN EXCHANGE FOR 1% OF THE MINERAL RIGHTS, DISTRIBUTOR HEREBY AGREES
TO PAY 200,000 SHARES OF HUMITECH COMMON STOCK, REPRESENTING $200,000 IN
EXCHANGE FOR THESE MINERAL RIGHTS. THESE RIGHTS WILL ROLL OVER EACH YEAR UP TO
FIVE YEARS OR FIVE PERCENT, FOR A TOTAL OF 5% FOR 1,000,000 SHARES OF COMMON
STOCK.
DISTRIBUTOR ACKNOWLEDGES THAT THE COMPANY SHALL RETAIN EXCLUSIVE RIGHTS TO
OPERATE AND REMOVE MATERIAL (MINERAL ORE) FROM MINE.
STOCK ISSUED IN CONJUNCTION WITH THE ABOVE MINERAL RIGHTS SHALL BE "REGISTERED"
WHEN THE COMPANY GOES PUBLIC. ALL RESTRICTIVE COVENANTS TO BE REMOVED, AND THE
STOCK TO BE FREELY TRADED.
IN THE EVENT THAT DISTRIBUTOR DOES NOT GO PUBLIC WITHIN ONE YEAR OF THIS
AGREEMENT, ALL MINERAL RIGHTS SHALL REVERT BACK TO THE COMPANY AND THE ISSUED
STOCK RETURNED TO DISTRIBUTOR.
DISTRIBUTOR AND EACH OF ITS SHAREHOLDERS AGREE NOT TO HOLD ANY DIRECT INTEREST
IN ANY CAPACITY WITH ANY ENTITY THAT MARKETS MINERAL BASED PRODUCTS TO CONTROL
HUMIDITY OTHER THAN COMPANY. FURTHER, IN THE EVENT THAT THE AGREEMENT IS
TERMINATED BY COMPANY FOR CAUSE OR BY DISTRIBUTOR WITHOUT CAUSE, DISTRIBUTOR AND
EACH OF ITS SHAREHOLDERS AGREE NOT TO COMPETE IN OR HOLD ANY DIRECT OR INDIRECT
INTEREST IN ANY NEW ENTITY COMPETING IN THE SAME OR SIMILAR BUSINESS AS COMPANY
WITHIN THE UNITED STATES FOR A PERIOD OF (5) FIVE YEARS FOLLOWING THE
TERMINATION OF THE AGREEMENT.
