DISTRIBUTORSHIP AGREEMENT
between
DryVac Environmental, Inc.
And
Solid Waste and Recovery Systems, Inc.
DryVac Environmental, Inc., hereinafter referred to as the "Company" and Solid
Waste and Recovery Systems, Inc., hereinafter referred to as the "Distributor",
in consideration of the promises made herein and intending to be legally bound,
agree as follows:
ARTICLE 1. RECITALS
Section 1.01. The Company is a corporation duly organized validly existing, and
in good standing under the laws of the State of Nevada, with corporate power to
own property and carry on its business as it is now being conducted. The Company
has its principal office and place of business at 000 Xxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxxxxxx.
Status of Distributor
Section 1.02. The Distributor is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Florida, with corporate
power to own property and carry on its business as contemplated by this
Agreement. Distributor has its principal office and place of business at 0000
Xxx Xxxxxx Xxx., Xxxxxxxxxxxx, Xxxxxxx 00000.
Company Business
Section 1.03. The Company is engaged in the manufacture and sale or leasing
(hereinafter collectively "sale" or "sales") of dewatering equipment and related
parts and other products from time to time manufactured and sold under the trade
name "DryVac" (collectively "Products").
Facilities, Ability, and Desire to Be Distributor
Section 1.04. (a) The distributor represents that it possesses the technical
facilities and ability to promote the sale and use of the Products manufactured
by the Company and is desirous of developing demand for and selling or leasing
such Products on an exclusive basis in the territory hereinafter described. (b)
Company is desirous of having Distributor develop demand for and sell or lease
its Products in such territory on the terms and conditions set forth herein.
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ARTICLE 2. DISTRIBUTORSHIP
Exclusive Appointment
Section 2.01. (a) The Company appoints the Distributor as the exclusive
wholesale distributor for the sale and/or leasing of its Products at retail
within the territory described in applicable Exhibit(s) attached hereto and made
a part hereof. The territory so described, and as may be subsequently enlarged,
reduced, or otherwise changed in area with the mutual consent of the parties
hereto, is hereinafter sometimes referred to as the "territory". (b) During the
continuance of this Agreement, the Company shall not appoint any other or
different person, firm, or corporation to sell the same products in the
territory, except as set forth in Section 3.15.
Section 2.02. The Company reserves the right to establish national accounts or
OEM's. The Company reserves the right to sell directly to these accounts. The
Distributor shall be notified of the existence of these accounts; the current
accounts are described in the applicable Exhibit(s). The commissions allotted to
the Distributor for these sales will be determined for each individual sale or
through an addendum to this agreement.
Acceptance
Section 2.03. The Distributor accepts the appointment to develop demand for and
to sell Company Products within the territory and will make all sales hereunder
in accordance with this Agreement. Distributor agrees not to purchase, sell,
promote, take on consignment, inventory, or otherwise distribute any product
which may, in the sole opinion of the Company, directly or indirectly compete
with the Company's Products.
Section 2.035. In the case of any products that the Company may hereafter
manufacture and sell which may be in conflict with or competitive to the
products of other manufacturers then being distributed by the Distributor, the
Distributor reserves the right by written advice to the Company to exclude such
Company products from the scope of this Agreement and thereby to consent to
their sale by others in the territory covered.
Term
Section 2.04. This Agreement shall continue in full force for the period of one
year from the date of this Agreement and, unless either of the parties hereto
has given to the other party written notice of its election to terminate this
Agreement at least Ninety (90) days prior to the end of any one year period,
thereafter for successive periods of one year each.
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ARTICLE 3. OPERATIONS
Acceptance of Orders; Filling
Section 3.01. (a) All orders the Company receives for its Products from the
Distributor are subject to acceptance by Company. All orders shall be made
pursuant to written Purchase orders in a form as shall be agreed by the parties.
All orders which result from purchases by end users shall also be evidenced by a
fully executed written contract in A form as shall be provided by the Company.
The terms of this Agreement and those of the Purchase Agreement shall control,
in all such events, the sale of Products by Company to Distributor and the terms
of any sales order, Purchase Order, or other document by Distributor shall be of
no force or effect. (b) The Company will use its best efforts to fill the
accepted orders as promptly as practicable, subject, however, to delays caused
by government orders or requirements, transportation conditions, labor or
material shortages, strikes, riots, fires, or any other cause beyond the
Company's control. In all cases, the company will use its best efforts to advise
the Distributor in advance of any inability to make full and timely delivery of
any products which the distributor has previously ordered.
Sales Subject to Company Quotation
Section 3.02. All sales of Products governed by this Agreement shall be subject
to the terms and conditions of a Company quotation. The Company shall have the
right to discontinue or change the production capabilities. Depending upon the
end user's needs, the Products may be sold in any one or a combination of the
following ways: product sales without installation; a total installed
("Turnkey") sale; installed unit plus a training program; and leasing or
rentals. Any of these sales possibilities will be quoted by the Company through
the Distributor. Sales will be developed directly by the Company or the
distributor or both.
Payment
Section 3.03. (a) The Distributor shall pay the Company for its Products the
Distributor's net price f.o.b. Rio Vista, California, according to the schedule
of prices as set forth in applicable Exhibit(s) attached hereto and incorporated
herein by this reference. (b) The Company may change the schedule of prices at
any time, but will give the Distributor 30-day notice prior to any price
increases. The Distributor shall have the benefit of any price reduction. (c)
Unless otherwise stated in applicable Exhibit(s) attached hereto and
incorporated herein by this reference, the Distributor shall pay the Company for
Products in full prior to delivery without offset, deduction, or withholding of
any kind. Any taxes in the Territory applicable to the goods provided or
services performed under this Agreement shall be paid by end user or
Distributor. If such terms do not require payment in full before shipment, then
distributor may, at the request of Company, be required to promptly execute any
agreements, instruments, or other documents necessary for creation and
perfection of a security interest in Company's favor for the Product sold to
secure full payment to Company by end user or Distributor. Any failure to make
any payment in full
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when due to Company or any failure to execute any document as required by
Company in connection with the sale of Products shall be a material breach of
this Agreement.
Initial Purchase
Section 3.04. Distributor shall initially purchase the Company's Products in the
quantities and for the prices set forth in applicable Exhibit(s) attached hereto
and incorporated herein by this reference which shall evidence a purchase order
for said initial purchase. Said purchase order shall be separately executed by
the parties in the form as set forth in applicable Exhibit(s).
Retention of Title as Security for Performance
Section 3.06. The Distributor shall be liable for payment of the purchase price
of any products covered by this Agreement pursuant to Section 3.02 hereinabove;
however, where applicable, until the purchase price has been paid in cash, title
to the Products shall remain in the Company; but such products, after delivery,
shall be at the risk and expense of the Distributor as to loss, destruction, or
damage, and taxes and charges of every kind. In the event that the Distributor
resells and delivers any of the Products prior to payment therefor, title to the
purchase price received by the Distributor shall be in the Company until the
full purchase price due the Company has been paid.
Further Security
Section 3.07. When Distributor is the purchaser and upon Company's request,
Distributor shall sign or cause to be signed all financing statements,
guarantees, and/or other instruments, agreements, and documents including but
not limited to UCC-1 financing statements that Company deems necessary to the
preservation and/or creation of Company's security interests, or to the
assurance of payment of any indebtedness or obligation due to Company by
Distributor. In addition, Distributor shall promptly notify Company should any
condition, act, or occurrence, imperil Company's security in said production or
indebtedness.
Section 3.08. When distributor acts as a sales representative, and upon
Company's request, Distributor shall use its best efforts to sign or cause to be
signed all financing statements, guarantees, and/or other instruments,
agreements, and documents including but not limited to UCC-1 statements that
Company deems necessary to the preservation and/or creation of Company's
security interests, or to the assurance of payment of any indebtedness or
obligation due to Company by the buyer. In addition, Distributor shall promptly
notify Company should any condition, act, or occurrence imperil Company's
security in said production or indebtedness.
Distributor's Efforts, Facilities, and Personnel
Section 3.08. The Distributor will use his best efforts to promote demand for
and sale of the Company's Products and will maintain adequate facilities and
sales, service, and field engineering personnel for the purpose. The Distributor
shall provide a technical support team trained by the Company to perform
installation, training and warranty work.
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Place of Business, Display Room, and Service Department
Section 3.09. The Distributor shall maintain a place of business, display room,
and service department satisfactory to the Company at all times, and the Company
shall have the right at all reasonable times during business hours to inspect
the place of business, display room, and service department. The Distributor
shall use and maintain a prospect generation and management program such as ACT
software and shall provide Requests for Proposals ("RFP") development assistance
as requested by prospects.
Service Obligations
Section 3.10. Installation Service. Distributor is required to have the
capability to correctly and timely install each Product sold by Distributor.
Section 3.11. Machine Start-Up Service and Training. Distributor is obligated to
perform machine Start-Up Service and Training for each product sold by
Distributor as well as for the Products not sold by Distributor but used within
the Territory. In the case the Distributor is not the Selling party, the selling
party and the Distributor will mutually agree upon the cost of the Start-Up
Service and Training prior to final quotation to the End User.
Section 3.12. Warranty Service. Distributor is obligated to provide Warranty
Service for each product sold by Distributor in the territory and for the
products not sold by Distributor but used within the Territory, with
compensation by Company as specified in applicable Exhibit(s). Warranty Service
shall be approved in writing by the Company prior to performance, using the
applicable exhibit.
Section 3.13. General Service. At the End User's request and expense,
Distributor is required to have the capability and to provide "breakdown"
maintenance service at the end user's expense for each Product sold by
Distributor or otherwise used within the Territory. Such service must be
provided in a manner meeting the requirements of the end user, consistent with
the service standards set forth in the applicable industrial standards for the
work being performed.
Section 3.14. Payment for Warranty Service. Company shall pay Distributor for
service performed in accordance with the foregoing within thirty (30) days of
Distributor's invoice therefore rendered after such services are completed to
Company's and End User's reasonable satisfaction. The rates to be paid to
Distributor for such warranty services are set forth in a separate written
agreement. All other service charges shall be charged by the Distributor or
Company, as the case maybe, directly to the End User. Failure to receive prior
written approval by the Company per Section 3.12 can be cause for non-payment of
the warranty services.
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Appointment of Dealers, Salesmen, or Other Representatives
Section 3.15. (a) The Distributor shall work and develop the territory to the
satisfaction of the Company, and in doing so shall utilize Distributor's best
dealers, salesmen, or other representatives to sell the Company's products. (b)
The Distributor shall file with the Company a copy of each agreement entered
into with such dealers, salesmen, or other representatives defining the
territory to be served, which agreements shall be on appropriate forms supplied
by the Company or as the parties may agree. The Distributor shall honor the
agreements, as set forth in the applicable Exhibit(s), between the Company and
the Sales Representatives established in the Distributor's territory prior to
this agreement. Termination of these agreements must have the Company's
approval. (c) Upon expiration or prior termination of any such agreement for any
cause, the Distributor shall furnish the company with notice thereof in order
that the Company's field personnel records will be up to date at all times. (d)
The Distributor shall represent the Products at all relevant trade shows within
the Territory and such other venues as the parties may agree. (e) The
Distributor shall provide assistance in procuring performance bonds as required
by any project.
Installation and Maintenance Service
Section 3.16. (a) The Distributor shall provide and maintain at its own expense
an efficient installation and maintenance service on all of the Company's
Products installed in the territory, in accordance with instructions issued from
time to time by the Company. (b) The Distributor shall (1) use his best efforts
and influence to enforce the wiring of buildings and the making of installations
in conformity with Underwriters Rulings and the National Code; (2) see that all
necessary repairs to and replacements of Company's Products are promptly and
properly made; and (3) use every reasonable effort to maintain a standard of
service consistent with policy of the Company. (c) In connection with the
maintenance of service on the Company's Products, the Distributor shall maintain
service vehicles adequate for the installed base of Products and shall carry in
stock an adequate quantity of repair and replacement parts, as the Company
stipulates. In stipulating the quantity of parts to be carried in stock, the
Company will be governed by the number of Products in the Distributor's
territory to be serviced. The Company shall have the right at any reasonable
time during business hours to inspect and check over Distributor's stock of
parts and, if in the Company's judgment a sufficient quantity of parts for
repair and replacement purposes are not then in the Distributor's stock, the
Distributor shall promptly order such parts as the Company recommends.
Freight and Installation Charges
Section 3.17. The Distributor may charge to and collect from each person to whom
he sells products acquired hereunder the following items:
(a) Freight charges as paid by him.
(b) Installation charges, to be set forth on the invoice which he renders
to the purchaser.
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Return of Products or Service Parts for Repair or Credit
Section 3.18. (a) Unless the Company shall have authorized or permitted the
return of any products or parts, the Company shall not be obligated to accept
from the Distributor by products or parts returned, nor to make any exchange
thereof, nor to credit the Distributor therefor. (b) Except in the case of
damage or defect attributable to the company, the Distributor shall not make any
claim against the Company for any damaged or defective product or part.
Common Carriers Agents of Distributor
Section 3.19. Whenever the company shall deliver or cause to be delivered to a
common carrier any goods ordered by the Distributor, whether the particular
carrier shall have been designated in the shipping or routing instructions of
the Distributor or not, the Company shall not be responsible for any delays or
damages in shipment and the common carrier, to which the Company shall deliver
goods shipped to the Distributor, is declared to be the agent of the
Distributor.
Report of Sales
Section 3.20. In order to enable the Company to have a complete record of all
Products sold, the Distributor shall furnish the Company weekly, or at such
intervals as the Company and the Distributor shall otherwise agree, a Prospect
contact list as well as a report of all sales of the Company's Products in the
territory.
Suggested Sales Price on Resale of Products
Section 3.21. The Company shall furnish to the Distributor a current list of
suggested retail prices for all of the Products of the Company. However, the
Distributor is under no obligation to sell the Products of the Company at the
prices specified in the price list nor any other price suggested by the Company.
Demonstrating Equipment
Section 3.22. The Distributor shall purchase and maintain at the expense of the
Distributor, at the expense of the Distributor, the demonstration units
scheduled in applicable Exhibit(s) attached hereto and incorporated herein by
this reference to be used for demonstration purposes in the territory of the
Distributor and such other dealer, salesman, or representative. The Company
shall not be liable for any expense in connection with the use or servicing of
any such unit.
Change of Design
Section 3.23. The Company reserves the right to change the design of any product
or part thereof at any time without notice to the Distributor. If any such
change is made, the Company may, but shall not be obligated to, make the change
upon any products or parts shipped thereafter on the orders of the Distributor,
nor shall the Company be obligated to make a similar change on any products or
parts previously shipped to the Distributor, or to install or furnish any other
or different parts than were thereon when shipment was
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made. The Company will make a best effort to notify the Distributor 30 days
prior to any design change affecting price or function.
Right to Use Name
Section 3.27. (a) Subject to the provisions of Subsection (b) and the prior
written approval of the Company, the Distributor may non-exclusively use the
name "DryVac" as applied to Company Products in any sign, advertising,
promotion, sale, lease, or servicing, during the continuance of this Agreement
and any use of the name "DryVac" by the Distributor shall only insure to the
Company's benefit. (b) In case of termination of this Agreement or upon request
of the Company, the Distributor shall forthwith discontinue use of such name in
any sign or advertising and thereafter shall not use the name directly or
indirectly in connection with its business, nor use any other name, title, or
expression so nearly resembling it as would be likely to lead to confusion or
uncertainty or to deceive the public. Upon Company's request. Distributor will
do such reasonable additional acts and execute such documents as Company, in its
sole discretion, deems necessary or desirable to relinquish and cancel any
rights which Distributor may acquire in any Xxxx as a result of this Agreement.
No DryVac or related Tradename or Trademark shall register in the Territory
without the prior written consent of the Company.
Proprietary Information
Section 3.28. Neither Distributor, nor Distributor's sub Distributor's, Agents,
employees, representatives, servants, or Distributor's third party contractors
shall use, cause to be used, share, disclose, transfer any Company proprietary
information, tradenames, trademarks, trade secrets, patent pending, or any other
confidential information or materials (collectively "Proprietary Information")
nor shall Distributor give, assign, or otherwise transfer or permit third
parties to receive any such Proprietary Information except in the strict
performance of Distributor's duties, obligations, and rights as set forth in
this Agreement. Information also includes but is not limited to: Distributor Net
Prices; customer or prospect lists, suppliers lists, distributor Sales Manual,
this Agreement, Distributor's Annual Sales Plan, Product details, pricing,
Company's business, the marketplace, competitors, etc; provided that such
confidential information shall not include information which is rightfully
generally public information supplied by a third party having the right to do
so. Upon the termination of this Agreement for any reason, Distributor will
return all Company confidential information to Company and cease using the same,
and, Distributor's obligations of confidentiality and non-use shall survive any
expiration, termination of amendment to this Agreement. All information that
Company has in its possession relating to Distributor's client lists and trade
secrets, shall likewise, be kept confidential by Company.
Catalogs and Advertising Matter
Section 3.29. The Company shall furnish to the Distributor from time to time as
they are prepared by the Company a reasonable quantity of its catalogs and other
advertising matter for use by the Distributor for display or mailing in the
advertising of Company Products. The Distributor will participate in cooperative
advertising and other promotional programs adopted by Company from time to time
in the Territory as set forth
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in the Distributor Policy Manual or other such documentation that Company may
use for such purposes, and pay a share of costs in connection with such
cooperative advertising as shall be agreed by Company and Distributor.
Insurance
Section 3.31. Distributor shall obtain and maintain insurance where applicable
(and when required by Federal, State, or local law) in types and amounts
customary in the trade of wholesale distribution of goods, comparable to
Products, including but not limited to: products liability, product replacement,
public liability fire, theft and vandalism coverage, premises liability,
automobile and worker's compensation coverage for all liabilities or potential
liabilities of Distributor relating to Products, including but not limited to:
Distributor's Warranty Service and/pr any modifications to Products by
Distributor. Distributor shall, on written request from Company, provide Company
written descriptions of the types and amounts of insurance in effect from time
to time together with such other information relating to Distributor's insurance
as Company may reasonably request. As to those Products with respect to which
Distributor acts as a sub-contractor to Company. Distributor will name Company
on its insurance policies as an "additional insured" relating to the Sale and/or
service of Products, as well as on all liability policies. Distributor shall
insure all Products during shipments to Distributor and/or end user at
Distributor's expense.
Notice of Safety Instructions
Section 3.32. Communicate to distributor's agents, employees, representative,
servants, third party contractors, and end users all warnings, safety
instructions, and notices regarding Product safety that Company may from
time-to-time require to be so communicated by Distributor.
Observance of Laws
Section 3.33. Comply with all laws and regulations applicable to Distributor's
business as well as those relating to distribution of Products and maintain all
necessary licenses and permits with respect to Distributor's business.
Distributor shall use Company's Products for lawful purposes.
Bonding
3.34. If an end user or potential end user of the Company products requires
bonding and the Distributor elects to have the Company bid directly for the sale
of the products, the Distributor shall cooperate with the Company's efforts to
acquire the required bonding. When bonding is required, the cost of the bonding
will be discussed for each individual occurrence.
Performance
Section 3.35. At the written request of the Company, provide satisfactory
guarantees of Distributor's performance of its obligations under this Agreement
by executing such documents as Company may require.
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Sale of By-Products
Section 3.36. Distributor shall promote, and sell the resultant by-products
created by the operation of Company Products to third parties for profit. These
by-products or remanufactured raw materials may be marketed and sold outside the
Territory.
Section 3.37. Distributor shall adhere to and perform all responsibilities of a
Company distributor set forth in the Distributor Policy Manual.
Section 3.38. Distributor will be provided access to any new products resulting
from continued Company research and development that are related to, relevant
to, an improvement of, or a logical extension of the existing product line.
Section 3.39. Distributor shall have no power or right to quote the final price,
establish sales or installation terms, determine product size, or contractually
bind Company in a sale of Products when Distributor acts as a representative in
a sale to a third party. In such a sale, Company will provide Distributor with a
final not-to exceed price quotation.
Section 3.40. Distributor will have the right to assemble any product, shipped
in part or in total by Company once Company has inspected Distributor's assembly
line and is satisfied that it meets all Company's standards.
Section 3.41. From time to time distributor may, with prior written authority
from Company, sell into a territory without a distributor. In such case, all
acts, rights, and responsibilities of Distributor will be governed by this
Agreement. Any and all sub-Distributor's appointed by Distributor shall be
approved by Company and agreed to in writing by Company prior to documents
authorizing use of trademarks, tradenames, and use of Proprietary Information
being in effect for sub-Distributor.
ARTICLE 4. COMPANY'S RESPONSIBILITIES
Company's Duties
Section 4.01; The Company's responsibilities, shall include, but not be limited
to the following:
(a) Produce products that meet committed performance standards.
(b) Provide installation, operating, and repair training and manuals in
English for translation (where necessary) and use by Distributor's technicians.
Distributor shall be wholly responsible for the translation and its
consequences.
(c) Pay Distributor for warranty work within thirty (30) days of
invoice.
(d) Provide for sales and project quotations within two (2) weeks of
written requests.
(e) Quote jobs through the Distributor in the manner requested by the
end users in accordance with the end user's needs as long as with the policies
as set by Company.
(f) Protect project pricing for the duration and terms of the sales
quotation.
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(g) Provide all necessary system sizing and engineering support to
integrate the Products into the sales prospect's existing system.
(h) Provide for delivery cycles not to exceed those quoted to any other
domestic distributor or sub-distributor.
(i) Suggest and assist with lead development through either
co-operative advertising, trade shows, and/or public relations.
(j) Provide sale tools and marketing support through cooperative
programs with the Distributor.
ARTICLE 5. TERMINATION
Right of Company to Cancel
Section 5.01. In case of the incapacity, death, or insolvency of the
Distributor, or in case an application is made to have the Distributor declared
bankrupt, or in case a receiver or trustee is appointed for the Distributor. The
Distributor has 30 days to resolve the situation to the Company's satisfaction.
If the situation is not resolved to the Company's satisfaction it may at its
option terminate this Agreement without any notice to the Distributor.
Termination by Either With or Without Cause
Section 5.02. The Company may terminate this Agreement for failure of the
Distributor to meet or abide by the provisions of the Agreement. If the Company
elects to terminate, it shall give ninety (90) days written notice of such
election to the Distributor during which time the Distributor may cure any
curable default otherwise the Agreement shall terminate without further notice.
Active prospecting outside the Territory without the prior express, written
permission of Company is grounds for loss of Distributor's exclusivity in the
Territory and is not subject to cure.
Applicability of Terms after Termination
Section 5.04. In the event of termination, this Agreement shall remain
applicable to any orders for Products which the Distributor has previously
placed and to any other orders which may be executed within ninety (90) days
subsequent to the effective date of termination except that the distributorship
shall become non-exclusive upon the receipt of notice of termination for cause,
uncured within said thirty (30) days.
Repurchase of Products on Termination
5.05. In the event of the termination of this Agreement by either party for any
reason, the Company may at its sole option repurchase from Distributor at the
fair market value, any Company Products and repair and replacement parts on hand
in the Distributor's place of business or in the possession of the Distributor.
On demand and the tender of the repurchase price, the Distributor shall be
obligated to deliver such goods to the Company forthwith. The Company reserves
the right, however, to reject any product, or repair or replacement part not in
first-class condition.
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Uninstalled Products on Termination
Section 5.06. In case of the termination of this Agreement by either party for
any reason and any Products have been sold but not yet installed, the Company
may install the products and charge all expenses to the Distributor's account,
to be deducted at time of final settlement.
Subrogation on Termination
Section 5.07. In case this Agreement shall be terminated for any reason, the
Company shall there upon at its option be subrogated immediately to any
agreements, rights, and relations of the Distributor with dealers, salesmen, or
other representatives appointed by the Distributor hereunder with regard to the
sale of Company Products and service parts, and all such agreements shall
contain a clause to make this provision effective in favor of the Company when
this Agreement shall be terminated.
ARTICLE 6. INTERPRETATION AND ENFORCEMENT
Notices
Section 6.01. Any notice, request, demand, or other communication required or
permitted hereunder shall be deemed to be properly given when personally served
or three (3) days after being deposited in the United States mail, postage
prepaid, or one (1) day after being fared, addressed:
(a) In the case of the Company, to Xxx Xxxxxxx, President, DryVac, Inc.,
000 Xxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 and Xxxxxx X. Xxxx, 000
Xxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 or to such other person
or address as the Company may from time to time furnish in writing to the
Distributor.
(b) In the case of the Distributor, to Xxx Xxxxxxxx, General Manager, Solid
Waste and Recovery Systems, Inc., 0000 Xxx Xxxxxx Xxx., Xxxxxxxxxxxx, Xxxxxxx
00000 or to such other person or address as the Distributor may from time to
time furnish in writing to the Company.
Distributor Not Agent or Legal Representative
Section 6.02. This Agreement does not constitute the Distributor the employee,
agent, partner, joint venturer, franchisee, or legal representative of the
Company for any purpose whatsoever. The Distributor is and independent
contractor and is not granted any right or authority to assume or to create any
obligation or responsibility, express or implied, on behalf of or in the name of
the Company or to bind the Company in any manner. Distributor shall have the
sole right and obligations to control the manner in which it performs its duties
under this Agreement, subject to no control by Company except as otherwise
expressly provided in this Agreement. Distributor shall be solely responsible
for all of its costs and expenses in any way relating to this Agreement and for
the profitability or lack thereof, of its business.
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Warranty
Section 6.03. In connection with the sale of Products, Company provides a
limited warranty according to the Product involved in the form as is set forth
on applicable Exhibit(s) attached hereto. Company reserves the right to revise
its limited warranties from time to time. SUCH WARRANTY SHALL BE THE ONLY
WARRANTY MADE OR DEEMED TO BE MADE TO ANY PERSON BY COMPANY AND IS EXPRESSLY IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO MERCHANTABILITY. FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT, THE REMEDIES SET FORTH IN SUCH LIMITED WARRANTY SHALL BE THE
ONLY REMEDIES AVAILABLE TO DISTRIBUTOR. SUB-DISTRIBUTOR OR ULTIMATE CUSTOMER OR
PERSON ARISING OUT OF THE SALE OF PRODUCTS BY COMPANY. Distributor shall not
have any authority to bind Company to any other representation or warranty. In
no event shall any warranty provided by Company apply to any Product that has
been modified by Distributor or any party, from standard Company specifications.
Distributor shall indemnify and hold Company harmless, including reasonable
attorney's fees and expert witness fees from and against any claim, demand,
action, cost, or liability of any nature arising from or relating to any Product
which has been altered in any way by or for Distributor or end user from Company
specifications.
Commission Due
Section 6.04. No commission, percentage of gross profit, or other compensation
(collectively "compensation") due Distributor as a result of any sale to an end
user shall be payable until and unless the Company has received and cleared full
payment for the Product(s) involved from the end user.
Notice of Claims
Section 6.05. (a) If during the term of this Agreement the Distributor shall
have reason to believe it has any claim against the Company in respect of any
transaction growing out of this Agreement, it shall notify company in writing
with ten (10) days after it knows or has reason to know the basis of any such
claim. (b) Failure to give the notice prescribed by Subsection (a) shall relieve
the Company from all liability on any claim in respect to any transaction
growing out of this Agreement. (c) The provisions of this section shall survive
the termination of any other portions of this Agreement.
Breach
Section 6.06. Should either party determine that there has been a breach of any
of the provisions of this contract, they shall notify the other party in writing
within ten (10) working days of such determination. The notification shall
specify the nature of the breach and ask for immediate cure. The party receiving
notification shall acknowledge receipt of the notice, in writing, within ten
(10) working days and state its intention to remedy the breach. Thereafter, the
party in breach shall have ninety (90) calendar days to
13
correct the breach or present a plan, acceptable to both parties, specifying the
actions to be taken to correct the breach.
No Liability
Section 6.07. If either Company or Distributor terminates or fails to renew this
Agreement in accordance with its terms, neither Company nor Distributor shall be
liable merely by reason of such termination or failure to renew for:
compensation, reimbursement, or damages of any kind, consequential or otherwise,
whether on account of expenditures, investments, business losses or loss of
goodwill claimed by the other party.
Except as otherwise specifically set forth in this Agreement: Company shall
have no liability for any expenditure made, or loss of income incurred, by the
Distributor in the performance of Distributor's obligations under this
Agreement. Distributor further acknowledges and agrees that Company shall not be
liable to Distributor for any post-termination or post non-renewal payments or
financial penalties arising strictly out of the termination of this Agreement by
Company in accordance with the terms hereof. The Distributor shall hold the
Company harmless from any and all claims brought by the end user for which the
Distributor is responsible including payment of all Company's attorney's fees,
expert witness fees and costs.
Completeness of Agreement
Section 6.08. This Agreement contains all of the agreements, understandings,
representations, conditions, warranties, and covenants made between the parties
hereto. Unless set forth herein, neither party shall, be liable for any
representations made, and all modifications and amendments hereto must be in
writing and executed by all parties. All prior negotiations, discussions and
meeting regarding the terms of this Agreement are hereby merged and integrated
into this Agreement. This Agreement supersedes any and all prior distributor or
other agreements between agreement are contractual and any breach of this
agreement is deemed material.
Waiver
Section 6.09. The failure of either party at any time to require performance by
the other party of any provision hereof shall not affect in any way the full
right to require such performance at any time thereafter. Nor shall the waiver
of either party of a breach of any provision hereof be taken or held to be a
waiver of the provision itself.
Controlling Law
Section 6.10. The validity, interpretation, and performance of this Agreement
shall be controlled by and construed under the laws of the State of California
and venue for any litigation, contractual or in tort, shall be in the County of
Alameda, City of Oakland. It is understood, however, that this is a general form
of agreement, designed for use in the United States wherever the Company may
desire to sell its products and that any
14
provision herein which in any way contravenes the substantive laws of any state
or jurisdiction shall be deemed not to be a part of this Agreement therein.
Section 6.11. The prevailing party in any legal proceeding whether in contract
or tort, shall be entitled to an award of reasonable attorney's fees, expert
witness fees, and costs incurred, whether incurred as a result of negotiations,
litigation, arbitration or otherwise.
Binding Agreement
Section 6.12. This Agreement shall be binding upon the parties and their
respective successors and assigns, included but not limited to mergers and
acquisitions, except that the Distributor may not transfer or assign this
Agreement or any right or obligation hereunder without the prior written consent
of Company.
Further Assurances
Section 6.13. At any time, and from time to time each party will execute such
additional instruments and take such action as may be reasonably requested by
the other party to carry out the intended purposes of this Agreement.
Cumulative Rights
Section 6.14. All remedies, rights, undertakings, obligations, and agreements
contained in this Agreement shall be cumulative, and none of them shall be in
limitation of any other remedy, right, undertaking, obligation, or agreement of
either party.
Severability
Section 6.15. If any provision hereof as applied to either party or to any
circumstance shall be adjudged by a court to be void or unenforceable, the same
shall in no way affect any other provisions hereof, the application of such
provisions in any other circumstances or the validity or enforceability hereof.
Counterparts
Section 6.16. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
Notice
Section 6.17. Any change in address shall be communicated to the other party
within seven (7) working days. Any notice required to be given by either party
in connection with this Agreement shall be in writing and delivered personally
or deemed delivered by registered or certified mail or via overnight package
express to the party or parties to be so notified, as follows,
Xxx Xxxxxxx, President
DryVac Environmental, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
15
Xxxxxx X. Xxxx
X. Xxxxxxxxx Xxxx, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000 3335
Ambiguities
Section 6.18. Ambiguities shall not be construed against the draft or of this
Exhibits
Section 6.19. Any and all Exhibits attached to or referred to in this Agreement
are hereby incorporated herein.
Section 6.20. Each of the undersigned warrant that they are authorized, duly
empowered, and directed to execute this agreement on behalf of the entity
indicated.
IN WITNESS HEREOF, DryVac Environmental, Inc., as Company and Solid Waste
Recovery Systems, Inc., as Distributor have caused this Agreement to be duly
executed by their authorized officers as of the day and year first written above
and as acknowledged and notarized by their signatures below.
Executed on ______________________, 1998, at Rio Vista, California.
COMPANY: DryVac Environmental Co., Inc.
By:_________________________________
Xxxxxx X. Xxxxxxx, President
DISTRIBUTOR: Solid Waste Recovery Systems, Inc.
By:_________________________________
By:_________________________________
16
EXHIBITS
Territory
1. The territory shall consist of: the counties in Florida, north of and
including Hillsborough, Polk, Orange, Seminole, and Volusia; the counties
in Georgia, south of and including XxXxxxxx, Xxxxx, Appling, Bacon, Coffee,
Irwin, Tift, Worth, Dougherty, Calhoun, and Clay. See the attached map.
For the nine months following the signing of this agreement, the
Distributor has the exclusive right to pursue sales at the following
locations:...........This right automatically becomes void at the end of
nine months unless extended in writing by the Company.
National Accounts
2. There currently are no national accounts in the established territory. The
Company reserves the right to modify this list.
Discount/Commission Schedule
3. The discount/commission schedule is as follows:
Quoted Amount % Discount/Commission
------------- ---------------------
$0-$250,000 18
$250,001-$500,000 15
$500,001-$1,000,000 13
$1,000,001-$2,000,000 11
$2,000,001-$3,000,000 9
Over $3,000,000 7
Discounts/Commissions will be earned on the incremental sales
amounts (i.e. a $350,000 sale would earn 18% on the first
$250,000 and 15% on the remaining $100,000).
For sales involving a third party in addition to the Company and the
Distributor, the dispersement of the discount/commission between the
Distributor and a third party shall be made as the two parties agree.
The split would normally be 50/50. The total discount/commission will
not exceed the average percentage of the discount/ commission rates for
the Distributor and the third party.
When equipment prices need to be discounted due to the competitive
nature of the sale, the Company and the Distributor will agree to
sharing of the discount. This will normally be shared equally by the two
parties.
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[GRAPHIC]
Map of the U.S. omitted
Payment
4. When purchasing a unit directly from the Company, the schedule of payments
by the Distributor is a 50% deposit at time of order and 50% due prior to
shipment. Each payment shall include the discount applicable to the portion
of the payment. When payments are being made by the end user, the terms
shall be 50% deposit at time of order, 40% prior to shipment and 10% within
30 days of shipping. For system greater than 50 cubic feet, the terms shall
be 25% deposit at time of order, 25% at completion of manufacturer's
preliminary project drawings, 40% prior to shipment and 10% within 30 days
of shipping. When payments are made by the end user, commissions shall be
made in accordance with Section 6.04 of the main document.
Initial Purchases
5. As a minimum, the Distributor agrees to purchase a standard one cubic foot
trailer-mounted DryVac unit at a cost of $40,000.00. The required 50%
deposit shall be presented at the signing of this agreement unless a
separate financial agreement is made.
Warranty
6. The DryVac plates have a limited warranty for five years per the attached.
Other system components manufactured by DryVac have a warranty of one year.
System components purchased from a manufacturer have the warranty stated by
the manufacturer. The Company shall compensate the Distributor for warranty
work performed on Company components. The Company shall not compensate the
Distributor for warranty work performed on system components from other
manufacturers.
Sales Representatives
7. There are no previously established Sales Representatives in the stated
territory.
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Xxxxxx X. Xxxx
X. Xxxxxxxxx Xxxx, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000 3335
Ambiguities
Section 6.18. Ambiguities shall not be construed against the draft or of this
Exhibits
Section 6.19. Any and all Exhibits attached to or referred to in this Agreement
are hereby incorporated herein.
Section 6.20. Each of the undersigned warrant that they are authorized, duly
empowered, and directed to execute this agreement on behalf of the entity
indicated.
IN WITNESS HEREOF, DryVac Environmental, Inc., as Company and Solid Waste
Recovery Systems, Inc., as Distributor have caused this Agreement to be duly
executed by their authorized officers as of the day and year first written above
and as acknowledged and notarized by their signatures below.
Executed on 1-23-98, 1998, at Rio Vista, California.
COMPANY: DryVac Environmental Co., Inc.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxx, President
DISTRIBUTOR: Solid Waste Recovery Systems, Inc.
By: /s/ Xxx X. Xxxxx
----------------------------------
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
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