EXHIBIT 10.2
PURCHASE OF SERVICE AGREEMENT
FOR AND IN CONSIDERATION of the promises, obligations and undertakings
established herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, this Agreement is executed as
of this 12th day of April, by and between, Xxxxxx of Ohio, Inc., Xxxxxx of
Kentucky, Inc. and Xxxxxx of Indiana, LLC (individually and collectively
hereinafter ("Xxxxxx") and S.L.R.T. Licensing. Inc., an Illinois corporation,
("SLRT").
WHEREAS, SLRT has developed and manufactured a technology for the recycling
of spent mercury containing lamps of all types (the "Technology") that is
patented as the sole and exclusive property of MAG Patent, Inc., an Illinois
corporation, and which Technology is the subject of pending international patent
processes; and
WHEREAS, MAG has granted SLRT full authority to license the Technology for
use by third parties throughout the world and has not granted any other person,
firm or corporation any rights, license, shop right or privilege thereunder as
to any location throughout the world; and
WHEREAS, Rumpke desires to use the Technology by and through licensees of
SLRT in its operating areas throughout the continental United States through
independent corporations to be established in the States wherein such operating
areas are located; and
WHEREAS, SLRT desires to establish exclusivity of the use of the Technology
with Rumpke in Xxxxxx'x present and future operating areas throughout the
continental United States (the "Rumpke Operating Areas");
NOW, THEREFORE. it is hereby agreed between SLRT and Rumpke (the "Parties')
as follows:
SECTION I: IMPLEMENTATION OF THE AGRREMENT
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Recitals.
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The foregoing recitals are hereby made a part of this Agreement.
1.1 Relationship of the Parties.
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For this Purchase of Service Agreement (the "Agreement") SLRT shall be an
independent contractor providing services as herein described to Rumpke.
Neither these representations nor the conduct of the Parties shall be intended
to establish any relationship other than that nor any agency between Rumpke and
SLRT.
SECTION 2. TERM
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2.1 The initial term of the Agreement will be for five (5) years from the
date first above stated, and will be automatically renewed for successive one
(1) year terms unless Rumpke provides SIXTY (60) days written notice in
accordance with the notice terms provided herein to terminate this Agreement
at the end of any term.
2.2 Anything in the Agreement to the contrary notwithstanding, either paryy
may terminate the Agreement upon thirty (30) days notice as herein provided for
if one party has provided notice to the other party of any default or breach of
the Party's
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obligation hereunder and such default or breach has not been cured or otherwise
remedied within thirty (30) days of receipt of notice thereof.
2.3 It is agreed between the Parties that service as herein defined will begin
as soon as possible after January 6, 2000 in accordance with operating
agreements implemented for the service as exchanged between the Parties and
which will became attachments by reference to the Agreement as such amendments
come into being.
SECTION 3: SERVICES PROVIDED
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3.1 SLRT will provide Rumpke with the Technology, related equipment, and trained
operations to provide spent tamp recycling services to the customers of Rumpke
for lamps described in Xxxxxx'x "Product Profile Sheet" (the "Services") in
accordance with schedules to be established by operating amendments agreed and
established between the Parties, from time to time, as to present and future
customers and present and future operating areas. The Product Profile Sheet
shall contain a true and correct description of the spent product and a specific
representation and warranty that such spent product will conform with the
description.
3.2 If the spent product provided to SLRT for recycling does not conform to
the description in the Product Profile Sheet. SLRT, at its option, may return it
to the Rumpke customer or to an agent or representative of Rumpke for disposal
of such non-conforming product at Xxxxxx'x or Xxxxxx'x customers' expense and
Rumpke shall reimburse SLRT for any and all actual expenses incurred in the
handling of the non-conforming product.
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3.3 It is specifically agreed that improvements and modifications to the
Technology will be incorporated into the services provided to all Rumpke
customers as such improvements come into being following the research and
development processes of SLRT on an ongoing basis.
SECTION 4. EXCLUSIVITY
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4.1 It is specifically agreed between the Parties that SLRT shall not service or
offer to service customers of any waste management entity other than Rumpke in
the Rumpke operating areas which presently are being serviced or which will come
into being during the term of the Agreement.
4.2 Operating Area Xxxxxxx.Xx is agreed between the Parties that for purposes of
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the exclusivity established herein, unless determined to be impractical or
unenforceable due to circumstances unique to each operating area, the Rumpke
operating areas will be defined as those areas within a sixty mile diameter of a
Rumpke service provider. However, nothing herein shall prevent agreement by the
Parties to modify the foregoing general definition in accordance with amendment
provisions herein provided for.
4.3 Operating Plan. Upon execution of the Agreement; representatives of the
Parties will discuss viable alternative means of communication and
implementation of the Services in the Rumpke operating areas. It is understood
between the Parties that the initial implementation of the Services will
establish practical solutions to problems of communication, customer contact and
scheduling of Services in geographical areas that will be defined by Rumpke, and
the Parties will use their best efforts to arrive at a mutually acceptable
planning,
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communication, logistical and operating scheme in order to maximize the quality
of the provision of the Services to Rumpke customers. Without limitation and
without establishing any precedent enforceable under the Agreement, it is
anticipated by SLRT that Rumpke will establish geographical locations for the
provision of the Services and communicate timetables to SLRT which are both
practical and efficient for the benefit of both Xxxxxx'x customers and the
ability of SLRT to provide the Services. As changes to the various Service
arrangements arc required, those changes will be mutually agreed and
incorporated in the Agreement as addenda.
SECTION 5. TECHNICAL OBLIGATTONS.
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5.1 Patent Protection. SLRT, at its sole expense, shall protect its rights
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under the Patent Laws of the United States to retain exclusive rights to the
Technology as of the date hereof, and at such Technology is to be modified, for
the benefit of the Parties consistent with this Agreement.
5.2 Technical Research and Development. SLRT intends, at its sole expense,
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to research, analyze, test and assess modifications to the Technology and its
use, which, in SLRT's sole determination, is suggested by experience or
regulation. Rumpke shall assist in any such activity by providing data,
information, efficiency analyses, and like operating facts to SLRT as SLRT may
reasonably request. All modifications or improvements from such research and
development activity will be made available to Rumpke during the term hereof or
any extensions.
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5.3 Confidentiality. Rumpke agrees to protect the Technology, to the fullest
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practical extent, from any compromise, of any kind, that may arise from the
provision of the Services by SLRT to Rumpke customers. In the event any Rumpke
customer requests any information. of any kind, related to or associated with
the Technology, a Rumpke representative will contact an SLRT representative
whose identity will be made known to relevant Rumpke management, for purposes of
complying with requests from any such Rumpke customer. In the event that Rumpke
shall engage any third party in its offering of the Services to any customer,
such engagement shall require confidentiality guarantees from any such third
party in a form acceptable to SLRT in its sole discretion.
SECTION 6. SLRT WARRANTY
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6.1 SLRT represents and warrants that the performance of the Services will,
in all respects, be in full compliance with all relevant Federal, State and
Local laws and regulations.
6.2 It is understood between the Parties that implementation of further
universal waste or hazardous waste regulations imposed by the United States
Environmental Protection Agency upon the various States will, if at all, occur
in irregular timeframes and, in some instances, informally and without
notification to service providers and service consumers of any kind, Rumpke and
SLRT shall cooperate in determining which regulations shall apply to the
provision of the Services to Rumpke customers and, unless a direct result of
SLRT error or omission, no circumstance shall render SLRT in default of the
representation and
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warranty in 6.1 while SLRT and Rumpke, in good faith, undertake to determine or
establish the relevant regulation for the provision of the Services in each
State.
SECTION 7:REGULATORY MATTERS
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7.1 Since it is essential that as much control as possible be retained over
the regulatory initiatives of all states in their implementation of universal
waste control measures and since SLRT has driven the regulatory schemes in
several states, which are realistic models to advance nationwide, SLRT shall
effect permitting or exemption for the provision of the Services and the
Technology in all Rumpke areas of operation. Rumpke shall provide assistance to
SLRT, as from time to time requested, in all permitting and regulatory
compliance matters.
7.2 Legislative and Regulatory Assistance. Since universal waste management
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and, as relevant, hazardous waste management, is subject to evolving regulatory
management throughout the United States, Rumpke agrees to provide all assistance
as may be requested by SLRT to facilitate ensuring the regulatory viability of
the Technology throughout the Rumpke operating areas. To this end, Rumpke and
SLRT will provide each other with all notices, from any source, of state, or
local regulatory activity within the Rumpke operating areas regarding universal
and hazardous waste.
SECTION 8. FEES AND RATES
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8.1 Rumpke agrees to pay SLRT the fees and rates for various spent mercury
containing product in accordance with the schedule set forth in Exhibit A.
8.2 It is agreed between the Parties that the fees and rates set forth in
Exhibit A shall be increased annually on the anniversary date of the
Agreement in accordance
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with increases in the Consumer Price Index relative to each Rumpke operating
area as from time to time published.
8.3 The fees and rates in Exhibit A shall also be increased from time to time to
reflect increases in fees, surcharges and assessments enacted upon the provision
of the Services after the date of the Agreement. Such fee and rate adjustments
shall be agreed to, in writing, between authorized representatives of the
Parties.
SECTION 9. REPRESENTATIONS OF THE PARTIES
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9.1 The parties make the following representations with the intention that they
are an inducement each to the other and form part of the consideration of the
Agreement and that they are true and correct on the execution of the Agreement
and will remain true during the term and any extension:
9.2 Each party is lawfully organized and in good standing under the laws of the
States of their incorporation and entities established hereafter shall similarly
be so organized and in good standing during the term or any extension; and
9.3 Each party has taken all required formal action to enter the Agreement and
undertake its obligations in accordance with its terms; and
9.4 The execution and the performance hereunder by each party will not violate
any law, regulation, order or judgment of any Court or administrative body.
9.5 Authority. The Parties and the persons executing the Agreement, on behalf
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of the Parties, have full authority to execute the Agreement, consummate the
transactions contemplated hereby and perform all the obligations created hereby,
all necessary corporate and other action having been taken to establish such
authority.
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SECTION 10: INDEMNIFICATION
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10.1. SLRT Indemnity of Rumpke. SLRT agrees to indemnify, defend and hold Rumpke
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harmless from and against any and all liability which Rumpke may be responsible
for or payout as a result of bodily injury, including death, property damage, or
any violation or alleged violation of law or regulation, to the extent caused by
SLRT's breach of the Agreement or any negligent omission or willful misconduct
of SLRT or its employees, which occurs during the provision of the
Services.
10.2 Acceptance of Title to Customer Product. Unless and until agreed upon by
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further agreement of the Parties, which agreement shall be included in
amendments to the Agreement as herein provided. SLRT shall accept title to
Xxxxxx'x customers' spent product upon delivery to SLRT by any SLRT vehicle and
shall assume all liability for that spent product upon such delivery. If and
when arrangements for the marketing of recyclable product and products is
arranged by operating amendments to the Agreement, as herein contemplated, the
Parties shall explore, independently and together, the most efficient use of
such recyclable product.
10.3 Each Party. Each of the Parties agrees to indemnify and hold the other
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party harmless, including each other parties' officers, directors, shareholders,
employees, agents and representatives from any and all liability loss, cost,
damages, or expenses. including reasonable attorneys' fees and costs of
litigation which either party or any of its officers, directors, shareholders,
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employees, or agents may sustain, incur, or be threatened with, by reason of or
arising out of:
10.3.1 Any claims of creditors of either party; and
10.3.2 breach of any untrue or misrepresented statements by either party
contained in the Agreement or any conduct by either Party which impairs at
prevents consummation of any transaction contemplated by the Agreement; or
10.3.3 The operation or either parties' business, whether by a party itself
or through any third party, including, without limitation, employee claims and
claims by Federal, State, and Local governments, authorities or agencies.
10.4 Survival The indemnification obligations; undertaken herein shall survive
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the term and any extension.
SECTION 11: MISCELLANEOUS PROVISIONS.
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11.1 Assignment. The rights, obligations, duties and privileges of each
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party shall not be transferred or assigned, in whole or in part, without the
prior written consent of the other party, which consent shall not be
unreasonably withheld.
11.2 Entire Agreement. The Agreement together with the Exhibits and
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Amendments contemplated or expected in accordance with the terms hereof, set
forth the entire understanding of the Parties relative to the subject matter
addressed herein and all prior discussions and agreements between the Parties
are merged herein.
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11.3 Amendment The Agreement may not be amended except as contemplated
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herein and in writing signed by each party through its duly authorized officer
or representative.
11.4 Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of the Parties and their respective successors, assigns and
representatives.
11.5 Applicable Law. This Agreement shall be subject to and governed by the
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laws of the States in which the Services are provided.
11.6 Further Assurances. Each party agrees to perform any further acts and
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execute and deliver any further documents which may be reasonably necessary to
carry out the provisions of the Agreement.
11.7 Invalid Provision. In the event that any provision of this Agreement is
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held to be invalid or illegal, for any reason, such determination shall not
affect the remaining provisions which shall be construed and enforced as if such
illegal or invalid provision had never been included.
11.8 Waiver. Any party may waive any term, condition or requirements under
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the Agreement or the present or future Exhibits and Amendments attached hereto
which is intended for its own benefit, and any waiver of any term or condition
of the Agreement or such Exhibits or Amendments hereto, shall not operate as a
waiver of any breach of such term or condition, nor shall any failure to enforce
any provision hereof or of the Exhibits or Amendments presently or to be
attached hereto, operate as a waiver of such provision or of any provision
hereof or such Exhibits or Amendments.
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11.9 Descriptive Headings. All section headings, titles and subtitles contained
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herein are inserted for convenience and reference only, and are to be ignored in
any construction of the provisions hereof.
11.10 Expenses. Each of the Parties shall pay its own expenses incident to this
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Agreement and the consummation of the transactions contemplated hereby.
11.11 Legal Action. In any action at law or in equity arising out of the
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Agreement and the transactions contemplated hereunder, the prevailing parties
shall be entitled to reasonable attorneys' fees and court costs in addition to
any other relief to which it may be entitled.
11.12 Notices. All notices required to be given pursuant to the terms hereof
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shall be given in each case as certified mail documents, return receipt
requested: TO:
Xxxxxx of Ohio, Inc.
Xxxxxx of Kentucky. Inc.
Xxxxxx of Indiana, LLC
DIRECTOR OF SALES AND MARKETING
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00000 Xxxxxx Xxxx
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Xxxxxxxxxx Xx 00000
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SLRT Licensing, Inc.
c/o Xxxxx & Associates Ltd.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
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11.13 Counterparts. This Agreement may be executed simultaneously in two
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, that patties have executed this Agreement the date first
above written.
Xxxxxx of Ohio, Inc.
Xxxxxx of Kentucky, Inc.
Xxxxxx of Indiana, LLC
________________
By:
Title:
SLRT Licensing. Inc.
By: _______________
Xxxxxxxx X. Xxxxx
Title: President
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SCHEDULE "A" TO XXXXXX Contract
The following pricing is SLRT's price to RUMPKE.
Fluorescent Lamps
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Under 4' .36
4' and OVER .54
P/IL and U Shaped .54
Shattershield .90
ALL Screw Based (HID's) 1.30 per lamp
All Broken Mercury
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Container Lamps 3.00 per lb.
Incandescent Bulbs 3.00 per lb.
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COMPUTER COMPONENTS
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Cathode Ray Tubes (CRT'S) 7.00 per unit
All Computers (CPU'S) 5.00 per unit
All Printers 3.00 per unit
Spent Lamp Recycling Technologies. INC.
By:
Title:_______________________
Xxxxxx Consolidated Companies
By:
Title: ______________________
