1
Exhibit 10.9
( L O G O )
DISTRIBUTORSHIP AGREEMENT
BETWEEN HACH COMPANY AND EURO TECH (FAR EAST) LTD.
This agreement made and entered into between Hach Company, Inc., a corporation
organized and existing under the laws of the State of Delaware, U.S.A., having
its principal offices at 00xx Xxxxxx and Lindbergh Parkway (P.O. Box 389),
Xxxxxxxx Xxxxxxxx 00000, Xxxxxx Xxxxxx of America ("Hach") and
EURO TECH (FAR EAST) LTD.
00/X XXXXXXXX XXXX XXXXXXX
00 XXXX XXXX XX.
XXXX XXXX ("DISTRIBUTOR")
Whereas Hach is one of the leading manufacturers of laboratory testing
apparatus, process analyzers and chemicals particularly intended for analysis
of water and other substances the ("Products"); and
Whereas Distributor has the commercial and technical experience and
capability as well as technically trained personnel to promote, sell and
service the Products;
Now, therefore, the parties hereto agree as follows:
1.0 DEFINITIONS
1.1 The "Territory" shall mean the geographic area described on Exibit A.
Territory, attached hereto.
1.2 The "Products" shall mean the items of the Product lines designated on
Exhibit B, Products, attached hereto. The parties may add to or otherwise
modify and list by mutual written agreement.
1.3 "Private Label Products" shall mean those products which Hach supplies to
its customers which bear the customer's label, or those products purchased from
Hach under a special agreement, or those products which are otherwise
denominated by Hach as Private Label Products.
1.4 "Contract Date" is the date shown beneath the signature of Hach Company at
the end of this Agreement.
2.0 APPOINTMENT OF DISTRIBUTOR
2.1 Hach hereby appoints EURO TECH (FAR EAST) LTD. Distributor of Products in
the Territory, and Distributor accepts said appointment, subject to all items
and conditions hereof.
2.2 Hach may appoint other person(s) or company(s) to distribute or represent
the Products in the Territory during the term of the Agreement or any extension
hereof.
2.3 Hach does not guarantee the Products will not at times be sold to
customers in the Territory by Distributors of representatives established
outside the Territory.
2.4 Hach may sell Products directly to customers in the Territory where
requested by a customer or where, in Hach's sole discretion, Distributor's
coverage of this Territory is not adequate.
3.0 PURCHASE, SHIPMENT
3.1 Distributor may sell only those Products described in Exhibit B, Products
in the Territory.
3.2 Absent a separate, written agreement, Distributor may not sell Private
Label Product, and no commission is due or shall be extended for such sales.
3.3 Subject to availability, Distributor shall place firm orders for and Hach
shall send to Distributor, Products in quantities sufficient to meet
Distributor's demand for the Products in the Territory.
3.4 Hach shall sell Products to Distributor, Ex Works (Factory, Ames, Iowa
U.S.A.) and all risk of damage or loss shall pass to Distributor at this point.
Hach retains title to the Products until courier delivers Product(s) at first
foreign (non U.S.) port of entry.
3.5 Products shall be sold to Distributor at Hach's Distributor List Prices in
effect at the time the order is accepted by Hach. All sales shall be made under
Hach's standard terms and conditions of sale, as modified and subject only to
the terms of this Agreement which shall prevail in the event of any
inconsistency between this Agreement and those terms and conditions of sale.
Hach shall furnish to Distributor from time to time a Distributor Price List
and a recommended price list covering the Products. Hach may from time to time
and without prior notice to Distributor change either of these price lists.
3.6 Each order placed by Distributor shall be subject to acceptance by Hach
in the U.S. Hach shall not be obligated to accept any order. Hach shall not be
liable to any party for its failure or refusal to accept any order.
3.7 Hach shall not be liable for loss, change, detention, delay or failure to
deliver all or any part of the Products resulting from causes beyond its
control, including but not limited to fires, strike, insurrection, riots,
1
2
[LOGO]
embargoes, car shortages, delays in transportation, inability to obtain supplies
and raw materials, requirements or regulations of the United States Government
or any other civil or military authority. Hach shall not be liable for any loss
or damage arising from such delay.
3.8 Quoted delivery dates are merely approximate. Delay in delivery shall
not entitle Distributor to cancel an order. Distributor's acceptance of delivery
of the Product shall constitute a waiver of all claims for loss or damage due to
delay.
3.9 Hach shall have the right to discontinue the availability of any
Product, or to make design changes or improvements in the Products, at any time
without notification to Distributor, without incurring any liability to
Distributor or to Distributor's dealers or customers and without any obligation
to apply any such changes or improvements to Products previously purchased by
Distributor or in use in the Territory.
4.0 TERMS OF PAYMENTS
4.1 Payment for Products shall be made by Distributor in U.S. dollars in
accordance with Hach's standard credit practices for International sales.
Ability to complete payments to Hach to the currency of the United States of
America as stipulated herein is of the essence of this Agreement. If by virtue
of any regulation or order of any government authority in the Territory
Distributor is unable to make payments in accordance with this agreement. Hach
may elect to terminate this Agreement.
4.2 Notwithstanding Section 4.1, payment may be made in U.S. dollars or in
any alternate currency upon which the parties hereto mutually agree in writing
prior to payment in that alternate currency.
4.3 All overdue invoices shall accrue interest at the rate of one and
one-half (1.5%) percent per thirty (30)-day period, with each fraction of a
period counting as a full period.
5.0 DUTIES OF DISTRIBUTOR
5.1 Distributor agrees to maintain a suitable place or places of business
with adequate facilities for the sale and servicing of the Products. Such
facilities shall be staffed by qualified personnel and shall remain open to
customers during business hours customary in the trade and in the Territory.
Distributor shall allow Hach's representatives at any reasonable time to examine
Distributor's place of business and inventories and to lost Distributor's
equipment and facilities so as to verify Distributor's compliance with this
agreement.
5.2 Distributor agrees to exert its best efforts to promote and sell the
Products in the Territory and to provide competent post-sales servicing for all
Products located in the Territory regardless of whether or not sold by
Distributor.
5.3 Neither Distributor nor any related or affiliated person of Distributor
shall, during the term of this Agreement, sell or represent any goods which
conflict or compete with the Products.
5.4 Distributors agrees to inform Hach in writing of all or companies other
than Hach, which or from whom Distributor purchases for resale or otherwise
represents during the term of this Agreement.
5.5 Distributor agrees to keep at all times during the term of this
Agreement an adequate inventory of Product as reasonably required to meet the
Sales Forecast for the Territory. Distributor shall execute such Sales Forecast
promptly upon signing this Agreement or at the start of Hach's fiscal year as
mutually agreed upon. In the event said Sales Forecast is not executed before
the first day of the third month following the Contract Date of this Agreement,
Hach may terminate this Agreement with thirty (30) days written notice to
Distributor.
5.5.1 An Annual Sales Forecast(s) will be provided by Distributor to
Hach by June 30 of each contract year.
5.6 Distributor shall furnish an Annual Sales and Operations Report
("Report") to Hach. This Report is due on February 1 of each year and Hach must
receive the Report no later than February 28. The Report shall contain accurate
information as to sales, customer demand, customer reactions, activities of
competitors, information on political and economic developments that could
affect in any way the financial condition of the Distributor and/or the ability
of Distributor to promote and sell the Products in the Territory and such other
information as Hach may reasonably request, including information on the
financial condition of Distributor.
5.7 Distributor shall maintain records of all sales and keep them on file
for (3) years. Distributor shall allow Hach's employees or agents to examine
such records at any reasonable time. Distributor agrees that all customers or
potential customers for the Products have been developed and created solely for
the benefit of Hach, and any list of customers or potential customers for the
Products shall be deemed to be the property of Hach.
2
3
[LOGO]
5.8 Distributor shall assist Hach in obtaining information regarding the
financial stability and credit history of any customer or prospective customer
with respect to which Distributor forwards an order directly to Hach for
acceptance in return for a sales commissions, as provided herein.
5.9 If Distributor services Hach equipment it shall do so according to Hach's
"International Instrument Service Policy and Procedure of Hach Company and of
Hach Europe, S.A."
6.0 RESALE OF PRODUCTS BY DISTRIBUTOR
6.1 Distributor shall actively solicit orders from prospective and actual
customers, either by calling on same with its own personnel through its dealers
or by mailing adequate printed material and brochures.
6.2 Hach may visit customers and prospective customers in the Territory and
may, but shall not be required to, afford Distributor an opportunity to
accompany the Hach representative on any such visit. Any order placed by a
customer during a joint visit by Hach and Distributor shall be for the account
of Distributor.
6.3 Distributor shall establish a Customer Price List which shall be made
available to Hach upon request. In doing so, Distributor agrees to give due
consideration to Hach's recommended customer list prices and prices of Hach
Product and competitive products in the U.S.A. and locally. Said Price List
shall be established to afford sales potential for the Products and at the same
time to secure due compensation to Distributor for the sale and service efforts
in the Territory.
6.4 Distributor shall not solicit or advertise in jurisdictions outside the
Territory, unless this restriction on solicitation or advertisement is
prohibited by law. Distributor shall not maintain branches, places of business
or warehouses outside the Territory for the Products without the prior written
consent of Hach.
6.5 Distributor shall not, without the prior written consent of Hach, alter
the Products in any manner including, without limitation, removal or alteration
of labels, tradenames, trademarks, notices, serial numbers or other identifying
marks, symbols or legends affixed to any of the Products or their containers
or packages.
7.0 SALES LITERATURE
7.1 Hach shall finish to Distributor reasonable quantities of sales
literature and brochures in the English language and using United States
standard measures and weights. Distributor shall be responsible for carrying
out, at its own cost and expense, any translations or adaptations of such
material required by local law, provided that no such translations or
adaptations shall be disseminated by Distributor without the prior written
consent of Hach. Nonetheless, Distributor agrees to indemnify Hach and hold it
harmless from any liability, damages, costs and expenses incurred by Hach with
respect to any improper or incorrect translation or adaptation of the above
mentioned materials.
7.2 Upon termination of this Agreement Distributor shall promptly deliver to
Hach all such material and any translations and/or adaptations thereof which
may be in Distributor's possession or control, in accordance with instructions
from Hach.
7.3 Hach shall have the right to distribute literature and brochures directly
to the customers and prospective customers in the Territory based on mailing
lists that Hach may develop. Where Hach and Distributor together develop such
lists, Distributor may be requested by Hach to pay up to one-half of the cost
of any such distribution.
8.0 APPOINTMENT OF DEALERS
Distributor shall not appoint any representatives, agents, sub-Distributors or
dealers ("Appointees") to assist in the promotion and/or role of the Products
in the Territory without the prior written consent of Hach. In the event that
Hach shall consent to any such appointments. It is understood that any such
Appointee shall not be considered a representative, agent, distributor, dealer
or employee of Hach, and shall derive no rights vis-a-vis Hach by virtue of
such appointment. Accordingly, Distributor agrees to indemnify Hach and hold it
harmless from any liability, damages, costs or expenses (including reasonable
attorney's fees) incurred by Hach as a result of acts of the Appointees.
Further Distributor shall indemnify and hold Hach harmless from any liability,
damages, costs or expenses (including reasonable attorney's fees) incurred by
Hach with respect to the termination and/or appointment of any such Appointees.
9.0 GOVERNMENT REGULATIONS
9.1 Distributor agrees to obtain at its own expense any import license,
foreign exchange permit, or other permit or approval it may need for the
performance of its obligations under this Agreement and to comply at its own
expense with all applicable laws, regulations and orders of the government(s)
of the Territory any instrumentality thereof.
3
4
[LOGO]
10.0 WARRANTY
10.1 Hach warrants that the Products are free from defects in material and
workmanship for a period of one (1) year from the date of shipment unless
otherwise specified by Hach.
10.2 The sole obligation of Hach is to repair or replace, in its option, and
without charge, any Product or part of its manufacture which it agrees is
defective.
10.3 This warranty does not cover limited-life electrical components which
deteriorate with age such as but not limited to: vacuum tubes, batteries,
lamps, photo cells, electrodes. In the case of equipment and accessories not
manufactured by Hach, but which are furnished with equipment of Hach's
manufacture. If liability is extended by the manufacturers thereof and
transferable to Distributor, Hach transfers such liability.
10.4 This warranty does not cover parts or Products which in Hach's or
Distributor's opinion have become worn from normal use or have been damaged by
misuse, negligence or accident, or which disassembly and/or repairs have been
attempted causing solo defect.
10.5 UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT, HACH ALIKES NO WARRANTY OF
ANY KIND WHATSOEVER WITH RESPECT TO ANY PRODUCTS FURNISHED HEREUNDER. HACH
EXPRESSLY DISCLAIMS WARRANTIES IMPLIED BY LAW, INCLUDING BUT NOT LIMITED TO
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO
EVENT SHALL HACH BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES.
10.6 Distributor, acting only on its behalf, shall in the sale contract
between it and its retail customer, provide a warranty similar to the one given
to Distributor by Hach herein. Distributor shall promptly perform and fulfill
any and all of the terms and conditions of each such warranty extended.
Distributor agrees not to extend to its customers any Product warranty that is
different from Hach's limited warranty set forth in this Section 10.
11.0 INDUSTRIAL PROPERTY
Distributor recognizes that Hach is the owner, assignee or licensee of various
industrial property rights in the United States and throughout the world,
including patents, trademarks, trade names, designs, insignia and confidential
information, and Distributor expressly acknowledges and agrees that it will not
have or acquire any rights in or to any such industrial property rights used or
adopted by Hach anywhere in the world, or used or adopted by any company
related to or affiliated with Hach, whether or not such industrial property
rights are registered in the Territory. Recognizing the importance of such
rights to Hach's business and good will, Distributors agrees as follows:
11.1 Should Distributor become aware of trade practices or actions posed or
threatened by third parties that may injure the business that Distributor
conducts pursuant to this Agreement or Hach's business and good will or the
above-mentioned property rights, full details of the same shall be promptly
supplied to Hach, and Hach or any person authorized by it shall have the right
to take or direct such action as Hach may deem proper against such third
parties. Distributor shall in no event take any action in protection of Hach's
rights or in furtherance of Hach's interest without Hach's written
authorization.
11.2 During the continuance of this Agreement and thereafter, Distributor
shall not take or cooperate in any action or threatened action which might in
any way impair such industrial property rights, or question Hach's paramount
ownership or interest in the same or in any way injure Hach's business and
good will.
11.3 Distributor shall not, without Hach's consent or direction, make any
threat against or cooperate in any action against third parties which in any
way involves the above-mentioned industrial property or which constitutes
unfair trade practices or violation of any law in the state or in the
advertising of Hach Products.
11.4 Distributor shall not alter, deface, remove, cover up or mutilate in
any manner whatever any trademark, serial or model numbers, brand or name which
is attached to Hach Products. If any such modifications or changes come to
Distributor's attention it shall report them to Hach.
11.5 During the continuance of this Agreement and thereafter Distributor
shall not use or register or attempt to register any name, or insignia which
infringes or is in conflict with or is confused similar to Hach's industrial
property rights, and Distributor shall not at any time assert any ownership or
interest in any such name, xxxx or insignia. The foregoing shall include use on
products, in business titles and in advertising literature.
11.6 During the continuance and solely for the purpose of this Agreement,
Distributor is granted the non-exclusive right to use Hach's trade names and
trademark in connection with the sale or offering for sale and trademark or
trade name or change the manner in which any such xxxx or name is displayed or
used when requested to do so by Hach. Such marks or names may be used as part
of the name under which Distributor's
4
5
[LOGO]
business is concluded only with the express approval of Hach. Distributor is
not authorized to use outside the Territory, directly or indirectly, in whole
or in part, as a part of Distributor's corporate name or in signs, advertising,
or any other similar selling offer. Any of Hach's trademarks or tradenames
that are now or may hereafter be owned by Hach.
11.7 During the continuance of this Agreement and thereafter neither
Distributor nor its officers or employees will divulge to others, without
Hach's written consent, confidential information supplied directly or
indirectly to Distributor including customer lists and purchase orders,
engineering or technical data including plans, specifications, drawings,
designs, layouts, processes and formulae, whether or not reduced to writing.
Distributor shall disclose confidential information only to those of its
officers or employees whose duties require them to know the same, and then only
if such persons have given to Distributor an enforceable undertaking not to
disclose the confidential information to any unauthorized third person, and
Distributor shall take any such other steps which may be necessary to cause
compliance with the provisions of this Section 11.7 by its officers and
employees.
11.8 Distributor shall reimburse Hach for all costs and expenses including
legal fees incurred by Hach in connection with any legal action taken to
enforce compliance with this Section 11.
12.0 PRINCIPAL-TO-PRINCIPAL RELATIONSHIP
It is understood and agreed that this Agreement creates a principal-to-
principal relationship between the parties hereto, that Distributor is not an
agent, and that Distributor may not lawfully bind Hach in any manner
whatsoever. Distributor shall not make quotations or write letters in the name
of Hach, but in every instance shall sign with its own name. The name of Hach
shall not appear on the stationery used by Distributor except as a marginal
note to indicate that Distributor is authorized by Hach to distribute Products
in the Territory. In no event shall Hach be liable for any expense incurred by
Distributor, the liability for which is not specifically assumed in writing by
Hach.
13.0 DURATION AND TERMINATION
13.1 This Agreement shall become effective upon the Contract Date. Unless
sooner terminated as hereinafter provided, this Agreement shall terminate one
year from the Contract Date. This Agreement may be extended beyond its original
term only by the mutual consent of the parties expressed in a written
instrument that refers to this Agreement and specifies the extended term.
13.2 The following events constitute just cause for termination of this
Agreement:
13.2.1 Default by Distributor in the payment of any obligations
owing to Hach; or
13.2.2 The filing by or against Distributor of any insolvency or
bankruptcy proceedings or proceedings for reorganization receivership or
dissolution, of the inability by Distributor to meet its debts as become
due; or
13.2.3 Any material, adverse change in Distributor's financial condition,
or
13.2.4 If Distributor is a corporation, more than fifty percent (50%) of
the stock of Distributor is transferred to another person who does not own
or contract at least twenty-five percent (25%) of Distributor's
equity at the time of execution of this Agreement; or
13.2.5 If Distributor is a partnership, any change in the membership of
Distributor's firm by death or otherwise; or
13.2.6 If Distributor is an individual, his death; or
13.2.7 A competitor of Hach acquires, directly or indirectly, control of
at least twenty-five percent (25%) equity interest in Distributor, or
13.2.8 Any dispute, disagreement or controversy arises between or among
any of Distributor's principals, partners, managers, officers or
stockholders which, in Hach's opinion, may adversely affect Distributor's
operation, management, reputation or business or Hach's interest or the
reputation of the Products; or
13.2.9 Any dispute, disagreement or controversy arises between Distributor
and a customer, which in Hach's opinion may adversely affect Hach's
interests or the reputation of Hach's Products; or
13.2.10 Without Hach's written consent, Distributor's place of business
remains closed during regular business hours for more than five (5)
consecutive days, except when the closing is caused by strikes or acts
of God or when the closing coincides with religious or other holidays
normally recognized in the city where Distributor's principal sales and
service are located, or
5
6
[LOGO]
13.2.11 The assignment or attempted assignment of this Agreement, or of
any interest herein or of any right hereunder, by Distributor without
Hach's written consent; or
13.2.12 Distributor's failure to obtain or maintain any license, permit or
authorization from any government within or without the Territory necessary
for the importation, sale or servicing of the Products thereunder, or
necessary to enable Distributor to make payments for the Products in the
United States of America dollars as provided in Section 2 hereof, or
otherwise necessary for the performance of Distributor's obligations
hereunder; or
13.2.13 The Failure or refusal of Distributor for a period of thirty (30)
days after notice to perform any of its obligations under this Agreement;
or
13.2.14 The enactment of law by any governmental unit within the Territory
which would restrict Hach's right to terminate and/or elect not to renew
this Agreement as herein provided, by making Hach liable to Distributor for
compensation and damages upon termination and/or failure to renew this
Agreement
13.2.15 The failure of Distributor to approximate the sales levels agreed
to in the Sales Forecast.
13.3 Upon the occurrence of any event specified in subparagraphs 13.2.2, 13.2.4
and 13.2.14 above, this Agreement shall automatically and immediately terminate.
Upon the occurrence of any of the other above specified events, in addition to
the other rights or remedies which Hach may have in law or equity, it may, as
its option, terminate this Agreement by written notice thereof. Such termination
shall become effective as of the date set forth in said notice but in no event
earlier than ninety (90) days after such notice is given. Any waiver of the
right to terminate for any of these events shall not constitute a waiver of the
right to claim damages and/or to terminate this Agreement for any similar events
which may occur in the future.
14.0 RIGHTS AND OBLIGATIONS UPON TERMINATION
Upon termination of this Agreement as provided in Section 13 or otherwise
provided for herein;
14.1 The acceptance of orders from Distributor or the continuance of sale of
Products to Distributor or any other act of Hach after notice of termination of
this Agreement shall not be construed as a renewal or a revival of this
Agreement for any further term or as a waiver of the termination.
14.2 Hach shall have the obligation of cancelling any of Distributor's
outstanding orders for Products.
14.3 Hach shall not be liable to Distributor for compensation or damages of
any kind whether on account of loss by Distributor of present or prospective
profits, or anticipated orders, or an account of expenditures, investments or
commitments made in connection with this Agreement, or on account of any other
thing or cause whatsoever.
14.4 Distributor shall remove all signs bearing any of Hach's trademarks or
tradenames, obliterate said trademarks or trade names from letterheads,
stationery, service orders and other forms, and discontinue the use of any
identification or advertising that might convey the impression that
Distributor is still an authorized Hach distributor. Distributor shall
immediately return to Hach all price lists and catalogs, technical
specifications, brochures, advertising matter of any kind and all originals and
copies of confidential information which Hach has supplied to Distributor
in accordance with instructions from Hach.
14.5 Hach shall have the option of repurchasing from Distributor any new
Products hold by Distributor in inventory which Hach in its sole discretion
determines to be marketable. Such Products shall be repurchased at the Ex Works
(Factory, Ames, Iowa U.S.A.) price as invoiced by Hach to Distributor for such
Products if Distributor can prove such invoice price; otherwise, such Products
shall be repurchased at seventy-five percent (75%) of Hach's current Ex Works
(Factory, Ames, Iowa U.S.A.) price for such Products. Distributor shall furnish
to Hach a xxxx of sale, or other document of the satisfactory to Hach, covering
all property repurchased under this Section 14.5.
14.6 Termination of this Agreement shall in no way affect Distributor's
obligation to make payments for the Products delivered prior thereto. The
parties may pursue any rights or obligations accrued or existing at the date
of termination.
14.7 Distributor shall if necessary, take all steps to transfer any
governmental or regulatory approvals for each Product to Hach or Hach's
nominee, or if such transfer is not permitted, to cooperate in the
cancellation of Distributor's governmental approvals and the reissuance
thereof to Hutch or Hach's nominee at Hach's expense.
6
7
( L O G O )
15.0 INDEMNIFICATION
15.1 Distributor shall indemnify and hold Hach harmless from and against all
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expenses (including, without limitation, attorney's fees) imposed upon,
incurred by or asserted against Hach that result from:
15.1.1 Acts of negligence or misrepresentations by Distributor, its
employees or agents; Distributor's breach of any provision of this
Agreement including without limitation, Sections 6, 7, 9 and 10); or
Distributor's failure to meet its obligations or to perform any acts
required under its agreements with any third party; and
15.1.2 The relationship between Distributor and any of its employees,
agents, and servants, whether under industrial accident laws, worker's
compensation laws or any other laws applicable to employers and employees.
15.2 The provisions of this Section 15 shall survive the termination
of this Agreement.
16.0 ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of Hach's
successors and assigns, but it is personal to Distributor and may not be
assigned or transferred by it without Hach's written consent which Hach may
withhold at its sole discretion whether such discretion is reasonable or
unreasonable.
17.0 ENTIRE AGREEMENT AND MISCELLANEOUS PROVISIONS
17.1 This Agreement, entered into by Distributor and Hach of their free will,
records the entire agreement between the parties and merges all discussions and
replaces any understanding or prior agreement which may heretofore have existed
between Hach and Distributor with regard to Distributor's appointment in the
Territory.
17.2 Any agreements to this Agreement shall be in the form of a written
document signed by all parties to this Agreement. Oral agreements and
representations shall be not be binding.
17.3 No party to this Agreement shall be responsible for noncompliance with
the terms and conditions of this Agreement where the reasons for such
noncompliance are beyond the control of the party.
17.4 Hach's failure to enforce at any time any provision, right or option of
this Agreement, shall in no way be considered a waiver of such provision, right
or option or in any way affect the validity of this Agreement. The exercise by
Hach of its rights or options hereunder shall not preclude it from or prejudice
it in exercising the same or any other rights or options it may have under
this Agreement. All notices provided for herein shall be given in writing by
registered return-receipt air mail, by telegraph or cable confirmed in
writing, by facsimile or other electronic transmission or by courier, addressed
to:
Distributor: EURO TECH (FAR EAST) LTD.
Hach: Hach Company
XX Xxx 000
00xx Xxxxxx and Lindbergh Parkway
Xxxxxxxx, Xxxxxxxx 00000 XXX
Attn: Vice President of Sales and Marketing
with a copy to:
Hach Company
XX Xxx 000
00xx Xxxxxx and Lindbergh Parkway
Xxxxxxxx, Xxxxxxxx 00000 XXX
Attn: Office of Chief Counsel of Operations.
17.5 Notices sent by facsimile, cable, telegraph or other electronic means
shall be seemed to be given on the day following the transmission. Notices sent
by registered return-receipt air mail shall be deemed to be given seven (7)
days after the date of mailing. Notices sent by courier shall be deemed to have
been given five (5) days after tender and acceptance of the notice by the
courier for purposes of delivery.
7
8
[LOGO]
18.0 SEPARABILITY
18.1 Any provision of this Agreement which in any way contravenes the law
of any country or political subdivision in which this Agreement is effective
shall, in such country or political subdivision and to the extent of such
contravention of law, be deemed separable and shall not affect the validity of
any other provision of this Agreement.
18.2 This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Colorado, U.S.A., without giving effect to its
conflict of law principles. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement.
18.3 Any dispute arising between the parties out of or in connection with
this Agreement shall be finally received by arbitration in Denver, Colorado
pursuant to the International Arbitration Rules of the American Arbitration
Association. The arbitration panel shall consist of three arbitrators, one
appointed by each party and a third neutral arbitrator appointed by the other
two arbitrators. The arbitration shall be conducted in English which is the
governing language of this Agreement.
18.4 Nothing in this Article shall prevent Hach from seeking injunctive
relief against Distributor from any judicial or administrative authority
pending the resolution of a controversy or claim by arbitration. Hach also
reserves the right to xxx in any court of competent jurisdiction to collect
from Distributor funds due and owing Hach for Products sold and delivered to
Distributor under this Agreement and Distributor agrees that, in the event of
any such suit for collection by Hach, Distributor shall not be entitled to
raise as a defence thereto any set-off or counterclaim alleged by Distributor,
rather, any set-off or counterclaim alleged by Distributor shall be subject to
the arbitration provision above.
19.0 COMMISSIONED SALES
19.1 Distributor may be entitled to a Sales Commission for sale of Hach
Product when such Product is sold by Hach or Distributor directly to a customer
in the Territory. Payment and allocation of Commission is specifically set
forth in Exhibit C, Commission Schedule, Hach recognizes that extraordinary
circumstances may warrant allocation of a particular sales commission on a
basis differing from that described in the Commission Schedule with approval
from Hach prior to the transaction. In all events, Hach's decision as to the
allocation of any commission shall be final and binding on all parties.
19.2 Commission payment shall be made by Hach in accordance with
Distributor's express, written instructions. At Hach's discretion, such payment
may be made in U.S. dollars or in the currency of the Territory. In no event
shall Hach be liable to Distributor for any commission, a claim for which is
reported to Hach more than six (6) months after the transaction.
19.3 Distributor shall assist Hach in assuring the timely and complete
payment of any invoice with respect to which a commission is owing to
Distributor, and Distributor shall advise all customers that on sales made
directly to customers by Hach, overdue payments shall accrue interest at the
rate of one-and-one half (1 1/2) percent per thirty (30)-days period, with each
fraction of a period counting as a full period.
19.4 Hach shall debit Distributor's account for any commission which is
paid to Distributor with respect to Products which are returned by the
customer for credit or refund and a prorata amount of any commission which is
paid with respect to orders for which Hach, for whatever reason, does not
receive payment in full. No commission shall be owing to Distributor with
respect to any sale for which Hach receives less than sixty percent (60%) of
the full invoice price.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year hereinafter written, to become effective
when signed by both parties.
DISTRIBUTOR FOR HACH COMPANY
NAME:__T C LEUNG_______________ NAME:___JOHN PRIVETTE___________
TITLE:_MANAGING DIRECTOR_______ TITLE:__VP MARKETING SALES______
DATE:__1 MAR 96________________ CONTRACT DATE:_11-MAR-96________
Exhibits:
Exhibit A Territory
Exhibit B Products
Exhibit C Commission Schedule
8
9
[LOGO]
EXHIBIT A
TERRITORY
_______________________________________________________________________________
Hong Kong
Macao
Peoples Republic of China
9
10
[LOGO]
EXHIBIT B
PRODUCTS IN THE TERRITORY
1.1 Distributor may only Distribute Products which are covered under this
Agreement. Products covered under this Agreement are denominated as such with a
check xxxx in the YES Column under 3.2 below. Product denominated with a check
xxxx in the NO Column below are not covered under this Agreement and
Distributor is not eligible to distribute those products.
2.3 PRODUCT CLASS COVERED UNDER THIS AGREEMENT
------------- ----------------------------
CHEMICALS YES X NO ___ EXCEPTED(1)___
(Process Reagents) -
CHEMICALS YES X NO ___ EXCEPTED ___
(COD Reagents; Lab/Kh -
Reagents manufactured by Hach)
TEST KITS YES X NO ___ EXCEPTED ___
(Test Kits; Test Kit Replacement Parts) -
MICROBIOLOGY YES X NO ___ EXCEPTED ___
(Microbiological Chemicals/Media; -
Kits and Apparatus manufactured by Hach)
CHEMISTRY RESALE YES X NO ___ EXCEPTED ___
(Resale Apparatus, Resale Lab Instruments) -
OTHER CHEMICALS YES X NO ___ EXCEPTED ___
(Other Chemicals manufactured by Hach) -
COLORIMETERS/SPECTROPHOTOMETERS YES X NO ___ EXCEPTED ___
(Pocket Colorimeters; DR-Series -
Colorimeters, DR-Series
Spectrophotometers; DR-EL Series
Portable Field Laboratories;
Special Field Laboratories)
LABORATORY INSTRUMENTS YES X NO ___ EXCEPTED ___
(Amperemetric Titralor, TitraStir(R); -
BOD Apparatus; IncuTral(R); COD Repeler;
Conductivity Meters; Digital Titralors;
Dissolved Oxygen Meters; Electrodes;
pH Meters; TenSeflo(R) Pipeties;
Digestion Instruments & Accessories;
Hach Miscellaneous Laboratory
Instruments and Accessories)
TURBIDIMETERS YES X NO ___ EXCEPTED ___
(Laboratory and Portable Turbidimeters) -
TURBIDIMETERS YES X NO ___ EXCEPTED ___
(Process Turbidimeters) -
PROCESS INSTRUMENTS YES X NO ___ EXCEPTED ___
-
SERVICE PARTS YES X NO ___ EXCEPTED ___
-
EXCEPTIONAL CONDITIONS (Describe)
-------------------------------------------------------------------------
-------------------------------------------------------------------------
----------
(1) Products annotated as "Excepted" are distributed under this Agreement but
are limited to the distribution arrangement described under the Exceptional
Conditions statement in this Exhibit E.
10
11
[LOGO]
EXHIBIT C
COMMISSION SCHEDULE
--------------------------------------------------------------------------------
1.0 Distributor may, at Hach's discretion and with prior approval on each
transaction, be allowed a percentage commission for certain sales.
1.1 Sales for which Distributor may be allowed a commission are indent
sales made at Hach's International market Price for the Territory.
Distributor orders for Distributor's own account at Distributor's cost are
not commissionable orders under this Agreement.
2.0 Commission is computed according to the following schedule.
2.0.1 Full Commission is 20% of the International Market Price for the
Territory. Ex. Works (Factory, Ames, Iowa).
2.0.2 Full Commission may be achieved according to the following
participation Schedule:
2.0.2.1 Credit for Specifying Hach Products' Up to fifty
percent (50%) of full commission may be credited to the
account of the Distributor who participates in securing a
written specification or preference for Hach Product(s) in
the Territory. Where more than one Distributor has secured
such specification or preference this fifty percent of full
commission may be allocated among the participants at Hach's
discretion.
2.0.2.2 Credit for Origination of Order: Up to twenty-five
percent (25%) of Full Commission may be credited to the
account of the Distributor from whose Territory the order
issued. Distributors must substantiate that he or his
agent(s) were materially instrumental in inducing the
customer to place the order for which commission is sought
with Hach Company. The following are examples of the types of
Inducement which will be considered instrumental and
therefore commissionable: pre-notifying Hach Company of the
existence of and order, specification of the Distributor's
name on the customer's purchase order, or other documentary
proof of Distributor Inducement. Nothing in this Section
2.0.2.2 would preclude Distributor from offering other
evidence of its instrumentality in the transaction. Hach may,
at its sole discretion choose to accept or reject such other
forms of proof.
2.0.2.3 Credit for Destination of Product: Up to twenty-five
percent (25%) of Full Commission may be credited to the
account of the Distributor into whose Territory Hach
Product(s) is shipped for installation or use. No Commission
shall be paid unless Distributor has and will, in Hach's
opinion, provide reasonable assistance to the customer in the
Territory before, during or after the transaction. Such
assistance may include but is not limited to on-site
inspection of the Product and a commitment to continued
service and support.
2.0.2.4 Upon receipt of commission payment for Destination
Credit, Distributor must, within 60 days of the date of the
commission check, prepare and submit to Hach a complete
description of any and all Distributor's post-transaction
activity may result in limitation of Distributor's rights to
receive future Destination Credit.
11
12
[LOGO]
2.0.3 All claims for Specification Participation, Order Origination or
Destination Participation must be adequately supported by written documentation
or a report acceptable to Hach which indicates the materiality of Distributor
involvement in the transaction.
2.0.4 Nothing herein precludes Hach Company and Distributor from agreeing
upon a Commission schedules or program different from that described in the
Exhibit B, so long as such schedule or program is agreed upon in writing and in
advance of any commissionable event.
12
