AGREEMENT
AGREEMENT, dated as of October 1, 1999, between X0XXXXXXX.XXX INC., a
Delaware corporation having its principal offices at 000 Xxxx Xxxxx Xxxxxxxxx,
Xxxx Xxxxx, Xxxxxxxxxx 00000 ("B2B"), and ENVIRO-CLEAN OF AMERICA, INC., a
Nevada corporation having its principal offices at 000 Xxxx Xxxxxx, Xxxxxxxxxx,
Xxx Xxxx 00000 ("Enviro-Clean") .
WHEREAS, Enviro-Clean owns and operates a web site at xxx.x0xxxxxx.xxx
("EC Site");
WHEREAS, Enviro-Clean sells products in the categories set forth on
Schedule 1 hereto through the EC Site and traditional distribution channels
(collectively, the "EC Products");
WHEREAS, B2B owns and operates a web site at xxx.x0xxxxxxx.xxx ("B2B
Site") through which its provides businesses with access to product and service
offerings, auctions, community functions, and business information;
WHEREAS, EC is a principal stockholder of B2B;
WHEREAS, B2B desires to sell EC Products through the B2B Site; and
WHEREAS, EC desires to process all e-commerce transactions generated at
the EC Site through B2B's e-commerce backbone (the "E-Commerce System").
IT IS AGREED:
1. Term. Subject to earlier termination pursuant to Section 10,
this Agreement shall remain in force and effect until October 1, 2004.
2. Sale of EC Products through B2B Site.
(a) During the term of this Agreement, B2B shall be entitled
to offer for sale, and to sell, through the B2B Site, any and all EC Products.
The price to be charged by B2B to its customers for each EC Product sold through
the B2B Site shall be established by B2B in its sole discretion.
(b) Enviro-Clean shall provide B2B with a full copy of its
product offerings and inventory database in electronic format, together with
weekly updates, including any EC Products that are not offered by EC through the
EC Site. Enviro-Clean shall cooperate with B2B, and take all necessary action
directed by B2B, to ensure that electronic data, including components of the EC
Site, such as HTMLs, needed to feature, depict and otherwise describe all
available EC Products are made available at the B2B Site without the need for
hyperlinking or other customer action that would take the customer outside of
the B2B Site.
(c) All orders for EC Products placed through the B2B Site
shall be processed through the E-Commerce System and electronically transmitted
to Enviro-Clean and its vendors immediately through an interface or interfaces
to be established between the E-Commerce System and the electronic systems of
Enviro-Clean and its vendors pursuant to Section 4.
(d) Enviro-Clean shall supply, package and ship, or cause its
vendors to supply, package and ship, to B2B's customers all EC Products
purchased through the B2B Site and shall use its commercial best efforts to
ensure that each order is processed and shipped within one business day from the
date it is placed through the B2B Site. Enviro-Clean shall be responsible for
the payment of all costs to vendors, suppliers, packagers and carriers.
Enviro-Clean shall use (and shall instruct its vendors to use) such carriers as
directed by B2B for the delivery to customers of EC Products purchased through
the B2B Site. Enviro-Clean shall deliver to B2B written notice of any shipping
rate changes and the effective date of such changes as soon as practicable after
notification of Enviro-Clean of same by carriers. Enviro-Clean shall report lost
shipments when reported by carrier, to the extent to which said carrier notifies
Enviro-Clean. Enviro-Clean shall provide support for tracking shipments made via
carrier that has tracking capabilities (e.g. Federal Express). B2B shall obtain
title to each EC Product once it is placed in the possession of a carrier.
(e) Notwithstanding anything to the contrary contained herein:
(i) B2B shall be responsible for additional shipping and handling costs
associated with shipments not originally delivered as a result of incorrect
customer addresses provided through the B2B Site; (ii) Enviro-Clean shall be
responsible for additional shipping and handling costs associated with
misshipments resulting from errors or omissions committed by it or its vendors
and for damaged goods; (iii) if a B2B customer cancels the order as a result of
the misshipment (other than as a result of error inputted by the customer at or
generated through the B2B Site) or damaged goods, Enviro-Clean shall be
responsible for the original shipping and handling costs; and (iv) B2B shall be
responsible for shipments lost through carrier error.
(f) Enviro-Clean shall track and report product return
information to B2B electronically through the E-Commerce System in order that
B2B may appropriately credit accounts and communicate with its customers. For
each return of a product for any reason to Enviro-Clean (other than for reasons
of defect or late delivery), B2B will be subject to a restocking fee of 1% of
the Stocking Cost for such product.
(g) B2B shall be responsible for all credit authorizations for
its customers. B2B shall be responsible for all invoicing and collections,
including collection of applicable sales tax, and credit fraud, with respect to
its customers.
(h) Enviro-Clean shall deliver to B2B within 10 days of the
end of each month an invoice in an amount equal to the Enviro-Clean Costs (as
defined below) setting forth for each of the categories of EC Products listed on
Schedule 1 ("Categories") (i) the quantities of products in such Category
ordered through the B2B Site and actually supplied and shipped by Enviro-Clean
and its vendors during such month, and (ii) the amounts paid by Enviro-Clean
(i.e., Enviro-Clean's actual per-unit cost, giving effect to any discounts ) to
(A) vendors for such products ("Stocking Cost"), (B) packagers for the packaging
of such products and (C) carriers for the delivery of such products to customers
(collectively, the "Enviro-Clean Costs"). B2B shall pay Enviro-Clean within 10
days of receipt of each invoice an amount equal to the Enviro-Clean Costs. Upon
reasonable request by B2B, Enviro-Clean shall give B2B's officers and
accountants access to the books and records of Enviro-Clean to confirm the
information contained in any such statement.
(i) B2B shall deliver to Enviro-Clean within 45 days of the
end of each calendar quarter a statement setting forth the revenues collected by
B2B from the sale of EC Products in each Category through the B2B Site during
such quarter, net of all returns and uncollected customer payments which have
not yet been credited ("Category Revenues"). At the time each quarterly
statement is delivered to Enviro-Clean, B2B shall also deliver a payment equal
to (x) the Category Revenues generated during the quarter, multiplied by (y) the
corresponding percentage set forth on Schedule 1. Upon reasonable request by
Enviro-Clean, B2B shall give Enviro-Clean's officers and accountants access to
the books and records of B2B to confirm the information contained in any
invoice.
3. Vendor Management Services.
(a) During the term of this Agreement, B2B will provide
Enviro-Clean with vendor management and order processing services for the EC
Site ("Vendor Management Services"), pursuant to which all orders for EC
Products placed through the EC Site shall be routed to the E-Commerce System.
The E-Commerce System will then process all such orders, process customer credit
authorizations, electronically forward orders to the appropriate vendors and
create customer invoicing. B2B and Enviro-Clean will mutually agree upon all
detailed final specifications and subsequent modifications (the
"Specifications") for the Vendor Management Services. All such Specifications
shall be in writing and set forth on Schedule 2 hereto, as amended from time to
time, and incorporated by reference into this Agreement.
(b) The E-Commerce System, as it exists today and at any time
in the future, including any general enhancements to the E-Commerce System
and/or the Vendor Management Services, as well as new features that B2B
incorporates into the E-Commerce System, Vendor Management Service and/or other
portions of its e-commerce processing or vendor management systems, regardless
of whether they are initiated by B2B or any other party or developed by B2B or
any other party at the request of Enviro-Clean or any vendor or other third
party, shall remain the exclusive proprietary property of B2B.
(c) The Vendor Management Services will be available to
Enviro-Clean twenty-four (24) hours a day, seven (7) days a week.
Notwithstanding the foregoing, B2B reserves the right upon reasonable notice to
Enviro-Clean to limit or curtail holiday or weekend availability of the Vendor
Management Services when necessary for system upgrades, adjustments, maintenance
or other operational considerations.
(d) B2B shall provide such onsite training and other
assistance as the parties reasonably deem necessary to assure that
Enviro-Clean's personnel are able to make effective use of the Vendor Management
Services. On-site training shall take place at such times and places as are
mutually agreeable to the parties. All costs associated with such training
(including travel and materials) shall be shared equally between the parties.
(e) Enviro-Clean will timely supply B2B, in a form acceptable
to B2B, with all data necessary for B2B to perform the Vendor Management
Services. It is the sole responsibility of Enviro-Clean to insure the
completeness and accuracy of such data. B2B acknowledges that all records, data,
files and other input material relating to Enviro-Clean are confidential and
shall take reasonable steps to protect the confidentiality of such records,
data, files and other materials. B2B will provide reasonable security safeguards
to limit access to
Enviro-Clean's files and records to Enviro-Clean and other authorized parties.
B2B will take reasonable steps to protect against the loss or alteration of
Enviro-Clean's files, records and data retained by B2B, but Enviro-Clean
recognizes that events beyond the control of B2B may cause such loss or
alteration. B2B will maintain backup file(s) containing all the data, files and
records related to Enviro-Clean. Enviro-Clean's file(s), records and data shall,
at no cost to Enviro-Clean, be released to Enviro-Clean on an occurrence that
renders B2B unable to perform hereunder, or upon the termination of this
Agreement as provided herein. B2B acknowledges that all records, data, files and
other input material relating to Enviro-Clean and its customers are the
exclusive property of Enviro-Clean. Notwithstanding the foregoing, B2B may use
such information for the compilation of general demographic statistics that it
may use to attract other vendor management services clients or advertisers.
(f) Enviro-Clean shall be responsible for the payment of all
federal, state or local sales, use, excise, ad valorem or personal property
taxes assessed in connection with purchases by its customers through the EC
Site. Enviro-Clean shall be responsible for all collections, including
collection of applicable sales tax, with respect to its customers. Enviro-Clean
shall be responsible for all credit fraud perpetrated through the EC Site.
(g) Enviro-Clean shall comply at all times with all applicable
laws and regulations relating to the provision of e-commerce, content,
information or other products or services over the Internet. Enviro-Clean
acknowledges that B2B exercises no control whatsoever over the content contained
in or passing through the EC Site, and that it is the sole responsibility of
Enviro-Clean to ensure that the information it transmits and receives complies
with all applicable laws and regulations.
(h) Within 20 business days of the date hereof (the last day
of this period being referred to as the "Insurance Due Date"), Enviro-Clean
shall obtain (and keep in full force and effect during the term of this
Agreement): (i) comprehensive general liability insurance in an amount not less
than $3 million per occurrence for bodily injury and property damage; (ii)
employer's liability insurance in an amount not less than $1 million per
occurrence; and (iii) workers' compensation insurance in an amount not less than
that required by applicable law. On or prior to the Insurance Due Date,
Enviro-Clean will furnish B2B with certificates of insurance which evidence the
minimum levels of insurance set forth above, and will notify B2B in writing in
the event that any such insurance policies are canceled. Enviro-Clean agrees
that on or prior to the Insurance Due Date, Enviro-Clean will cause its
insurance provider(s) to name B2B as an additional insured and notify B2B in
writing of the effective date thereof.
(i) Enviro-Clean shall deliver to B2B within 45 days of the
end of each calendar quarter a statement setting forth the amount of (i) "EC
Site Revenues" and (ii) "Gross Profits." "EC Site Revenues" shall mean any and
all revenues generated by Enviro-Clean through the EC Site during such quarter,
including the sale of products and services through the EC Site, the placement
of advertising on the EC Site, and the implementation of "click-through"
features. "Gross Profits" shall mean EC Site Revenues, less the costs of
purchasing products sold on the EC Site during the quarter from primary vendors
and packaging and delivering such products to customers. At the time each
quarterly statement is delivered to B2B, Enviro-Clean shall also deliver a
payment equal to the greater of (A) 10% of the EC Site Revenues and (B) 50% of
the Gross Profits. Upon reasonable request by B2B, Enviro-Clean shall give B2B's
officers and accountants access to the books and records of Enviro-Clean to
confirm the information contained in any such statement.
4. Technology Integration.
(a) B2B shall pay for, oversee and supervise the design,
implementation and installation of all software, protocols and interfaces
necessary to integrate the E-Commerce System, the B2B Site, the EC Site and the
related e-commerce, electronic ordering, inventory management, processing
systems and other systems of B2B, Enviro-Clean and Enviro-Clean's vendors to
ensure that the services to be rendered under this Agreement can be rendered as
contemplated.
(b) Enviro-Clean shall cooperate with B2B, and take all
necessary actions directed by B2B, to ensure that all systems of B2B,
Enviro-Clean and Enviro-Clean's vendors are properly integrated and
interconnected as necessary to render the services contemplated under this
Agreement.
(c) All interfaces and other integrating technologies,
adaptions and improvements and related software, protocols and codes designed,
created or authored by B2B or any of its contractors shall be the sole property
of B2B.
(d) Enviro-Clean shall be responsible for obtaining, at its
cost and expense, all consents of its primary vendors necessary for the
integration of systems and for the transactions contemplated by this Agreement.
(e) Both parties shall strive for maximum security of
transaction information being transferred through electronic interfaces. Neither
party shall use transaction information for any purpose except to render the
services contemplated by this Agreement.
(f) The parties shall retain electronic transaction data for a
minimum of twelve (12) months from the date it is first generated.
5. Confidential Information.
(a) Each party acknowledges that it will have access to
certain confidential information of the other party concerning the other party's
business, plans, customers, technology and products, including the terms and
conditions of this Agreement ("Confidential Information"). Confidential
Information will include, but not be limited to, each party's proprietary
software and customer information. Each party agrees that it will not use in any
way, for its own account or the account of any third party, except as expressly
permitted by this Agreement, nor disclose to any third party (except as required
by law or to that party's attorneys, accountants and other advisors on a need to
know basis), any of the other party's Confidential Information and will take
reasonable precautions to protect the confidentiality of such Confidential
Information.
(b) Information will not be deemed Confidential Information
hereunder if such information: (i) is known to the receiving party prior to
receipt from the disclosing party directly or indirectly from a source other
than one having an obligation of confidentiality to the
disclosing party; (ii) becomes known (independently of disclosure by the
disclosing party) to the receiving party directly or indirectly from a source
other than one having an obligation of confidentiality to the disclosing party;
(iii) becomes publicly known or otherwise ceases to be secret or confidential,
except through a breach of this Agreement by the receiving party; or (iv) is
independently developed by the receiving party.
6. Representations and Warranties.
(a) Enviro-Clean represents and warrants that:
(i) The EC Products and EC's delivery of the services
contemplated by Section 2 and use of the services contemplated by
Section 3 of this Agreement do not and will not, during the term of
this Agreement, violate any applicable laws or regulations.
(ii) Enviro-Clean owns or has the right to use all
material contained in the EC Site, including all text, graphics, sound,
video, programming, scripts and applets; and
(iii) The production, distribution and transmission of
the EC Site, or any information or materials contained in it does not:
(A) infringe or misappropriate any copyright, patent, trademark, trade
secret or any other proprietary rights of a third party; or (B)
constitute false advertising, unfair competition, defamation, an
invasion of privacy or violate a right of publicity.
(b) B2B represents and warrants that:
(i) B2B's use of the services contemplated by Section
2 and delivery of the services contemplated by Section 3 of this
Agreement do not and will not, during the term of this Agreement,
violate any applicable laws or regulations.
(ii) B2B owns or has the right to use the E-Commerce
System for the delivery of the services contemplated by this Agreement.
(iii) The production, distribution and transmission of
the B2B Site, or any information or materials contained in it does not:
(A) infringe or misappropriate any copyright, patent, trademark, trade
secret or any other proprietary rights of a third party; or (B)
constitute false advertising, unfair competition, defamation, an
invasion of privacy or violate a right of publicity.
7. Non-Competition.
(a) During the term of this Agreement, neither Enviro-Clean
nor any of its subsidiaries or affiliates (other than B2B) either directly or
through other persons or entities shall sell any products or services through
the Internet or any proprietary online service other than products in the
Categories set forth on Schedule 1.
(b) During the term of this Agreement, neither Enviro-Clean
nor any of its subsidiaries or affiliates (other than B2B) either directly or
through other persons or entities shall sell any EC Products through the
Internet or any proprietary online service other than through the EC Site and
the B2B Site pursuant to this Agreement.
(c) During the term of this Agreement, neither Enviro-Clean
nor any of its subsidiaries or affiliates (other than B2B) either directly or
through other persons or entities shall create, design, establish or operate any
web site or any proprietary online channel or other interactive service the
primary purpose of which is to provide businesses with integrated online
availability of product and service offerings, business information and content
and community functions, such as chat rooms and bulletin boards.
(d) During the term of this Agreement, both parties' agree not
to directly solicit for employment any employee of the other party. It is
acknowledged by both parties that Xxxxxxx Xxxxxx is an employee of each party.
8. Indemnification.
(a) Enviro-Clean shall indemnify and hold harmless B2B and its
officers, directors and employees ("B2B Indemnitees") from and against, and
shall reimburse them for, any losses, claims, damages and liabilities (including
costs and expenses attendant thereto, including reasonable attorneys' fees)
which may be sustained, suffered or incurred by the B2B Indemnitees, arising
from or in connection with (i) the breach of any of Enviro-Clean's
representations, warranties or covenants contained in this Agreement, (ii) any
content presented on the EC Site, except to the extent such content was provided
by B2B or (iii) the operation of the EC Site, including without limitation,
improper use of software and infringement of patents or other intellectual
property.
(b) B2B shall indemnify and hold harmless Enviro-Clean and its
officer, directors and employees (the " EC Indemnitees") from and against, and
shall reimburse them for, any losses, claims, damages and liabilities (including
costs and expenses attendant thereto, including reasonable attorneys' fees)
which may be sustained, suffered or incurred by the EC Indemnitees, arising from
or in connection with (i) the breach of any of B2B's representations, warranties
or covenants contained in this Agreement, and (ii) any content presented on the
B2B Site, except to the extent such content was provided by Enviro-Clean or its
vendors.
(c) A party required to make an indemnification payment
pursuant to this Section ("Indemnifying Party") shall have no liability to make
such payment unless the party or parties entitled to receive such
indemnification payment (each an "Indemnified Party") gives notice to the
Indemnifying Party specifying (i) the covenant, representation or warranty
contained herein which it asserts has been breached, (ii) in reasonable detail,
the nature and dollar amount of any claim the Indemnified Party may have against
the Indemnifying Party by reason thereof under this Agreement, and (iii) whether
the claim is a third-party claim or a direct claim of the Indemnified Party
against the Indemnifying Party.
(d) If an Indemnified Party becomes aware of a third-party
claim for which an Indemnifying Party would be liable to an Indemnified Party
hereunder, the Indemnified Party shall, with reasonable promptness, notify in
writing the Indemnifying Party of such claim,
identifying the basis for such claim and the amount or the estimated amount
thereof to the extent then determinable which estimate shall not be conclusive
of the final amount of such claim (the "Claim Notice"); provided, however, that
any failure to give such Claim Notice will not be deemed a waiver of any rights
of the Indemnified Party except to the extent the rights of the Indemnifying
Party are actually prejudiced by such failure. The Indemnifying Party, upon
request of the Indemnified Party, shall retain counsel (who shall be reasonably
acceptable to the Indemnified Party) to represent the Indemnified Party and
shall pay the reasonable fees and expenses of such counsel with regard thereto;
provided further, however, that any Indemnified Party is hereby authorized,
prior to the date on which it receives written notice from the Indemnifying
Party designating such counsel, to retain counsel, whose reasonable fees and
expenses shall be at the expense of the Indemnifying Party, to file any motion,
answer or other pleading and take such other action which it reasonably shall
deem necessary to protect its interests or those of the Indemnifying Party until
the date on which the Indemnified Party receives such notice from the
Indemnifying Party. After the Indemnifying Party shall retain such counsel, the
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (ii) the named parties of any such
proceeding (including any impleaded parties) included both the Indemnifying
Party and the Indemnified Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. If requested by the Indemnifying Party, the Indemnified Party
agrees to cooperate with the Indemnifying Party and its counsel in contesting
any claim or demand which the Indemnifying Party defends. A claim or demand may
not be settled by any party without the prior written consent of the other party
(which consent will not be unreasonably withheld) unless, as part of such
settlement, the Indemnified Party shall receive a full and unconditional release
reasonably satisfactory to the Indemnifying Party. Notwithstanding the
foregoing, the Indemnifying Party shall not settle any claim without the prior
written consent of the Indemnified Party if such claim is not exclusively for
monetary damages.
9. Late Payments and Resolution of Payment Disputes.
(a) Each party shall be entitled to charge the other party
interest at the rate of 10% per annum for any late payments due under the terms
of this Agreement. Each party shall be entitled to offset amounts owed to it by
the other party under the terms of this Agreement against amounts it owes to
such other party.
(b) For purposes of the procedures set forth in this section,
a "dispute" is a disagreement regarding amounts and timing of payments due under
this Agreement that the parties have been unable to resolve by the normal and
routine channels ordinarily used for such matters. In order to resolve a
dispute, the parties shall first follow the informal and escalating procedures
set forth below.
(i) The complaining party's representative will
notify the other party's representative in writing of the dispute, and
the non-complaining party will exercise good faith efforts to resolve
the matter as expeditiously as possible.
(ii) In the event that such matter remains unresolved
thirty (30) days after the delivery of the complainant party's written
notice , a senior representative of
each party shall meet or confer within ten (10) business days of a
request for such a meeting or conference by either party to resolve
such matter.
(iii) In the event that the meeting or conference
specified in (ii) above does not resolve such matter, the senior
officer of each party shall meet or confer within ten (10) business
days of a request for such a meeting or conference by either party to
resolve such matter.
(iv) If the parties are unable to reach a resolution
of the dispute after following the above procedure, or if either party
fails to participate when requested, the parties may proceed in
accordance with paragraphs (c)-(e) below.
(c) Any dispute shall, after utilizing the procedures in this
section , be resolved by final and binding arbitration in New York, New York,
before a single arbitrator selected by, and in accordance with, the rules of
commercial arbitration of the American Arbitration Association. Each party shall
bear its own costs in the arbitration, including reasonable attorneys' fees, and
each party shall bear one-half of the cost of the arbitrator.
(d) The arbitrator shall have the authority to award such
damages as are not prohibited by this Agreement and may, in addition and in a
proper case, declare rights and order specific performance, but only in
accordance with the terms of this Agreement.
(e) Any party may apply to a court of general jurisdiction to
enforce an arbitrator's award, and if enforcement is ordered, the party against
which the order is issued shall pay the costs and expenses of the other party in
obtaining such order, including reasonable attorneys' fees.
10. Early Termination.
(a) At any time when Enviro-Clean owns less than 10% of the
outstanding voting stock of B2B, based on the aggregate number of votes carried
by shares of common and preferred stock of B2B outstanding, each party shall
have the right to terminate this Agreement by giving 30 days written notice of
its election to terminate to the other party.
(b) Enviro-Clean may terminate this Agreement upon ten days
prior written notice if it experiences Repeated Unavailability of the Vendor
Management Services. "Repeated Unavailability" shall mean the unavailability of
the Vendor Management Services to process orders placed through the EC Site for
a sustained period of four or more hours on three or more occasions during any
one calendar month, excluding unavailability as a result of regularly scheduled
system maintenance, failures wholly related to error or omission by
Enviro-Clean, web hosts, system integrators or communications service providers
other than B2B or entities hired or contracted by B2B or Enviro-Clean in
connection with the Vendor Management Services, and regional or national
Internet or communications outages outside the control of B2B. In no event will
B2B be liable to any third party for any claims arising out of or related to
Repeated Unavailability for any lost revenue, lost profits, replacement goods,
loss of technology, rights or services, incidental, punitive, indirect or
consequential damages, loss of data, or interruption or loss of use of service
or Enviro-Clean's business, even if advised of the possibility of such
damages, whether under theory of contract, tort (including negligence), strict
liability or otherwise.
11. General Provisions.
(a) Neither party shall assign or otherwise transfer this
Agreement in whole or in part, or any of the rights and obligations hereunder,
either voluntarily or by operation of law, without the other's written consent.
(b) Neither party shall be deemed to be in default or have
breached any provision of this Agreement solely as a result of any delay,
failure in performance or interruption of service resulting directly or
indirectly from any act of God, civil or military authority, civil disturbance,
war, laws, regulations, acts or orders of any government or agency or official
thereof, or any other occurrences beyond the party's reasonable control.
(c) No waiver of any provision of this Agreement or of any
rights or obligations of either party hereunder shall be effective unless in
writing and signed by the party or parties waiving compliance, and any such
waiver shall be effective only in the specific instance and for the specific
purpose stated in such writing.
(d) The execution and delivery of this Agreement shall not be
deemed to confer any rights or remedies upon, nor obligate any of the parties
hereto, to any person or entity other than such parties. Nothing in this
Agreement shall cause or be deemed to cause the parties to be partners or joint
venturers with, or agent or employees of, each other. The parties are
independent contractors, and neither party shall have any right or power to
create any obligation or responsibility on behalf of the other party.
(e) B2B shall not be liable to Enviro-Clean or to any third
party for any loss or damage, whether direct or indirect, resulting from delays
or interruptions of service due to mechanical electrical or wire defects or
difficulties, storms, strikes, walk-outs, equipment or systems failures, or
other causes over which B2B, its affiliates, employees, officers, or agents have
no reasonable control, or for loss or damage, direct or indirect, resulting from
inaccuracies, erroneous statements, errors of facts, omissions or errors in the
transmission or delivery of Vendor Management Services, or any data provided as
a part of the Vendor Management Services pursuant to this Agreement, except to
the extent caused by the gross negligence or wilful misconduct of B2B.
(f) All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered if delivered personally or by nationally
recognized overnight courier or by facsimile to the parties at the following
addresses and numbers (or at such other address or number for a party as shall
be specified by like notice):
If to B2B:
x0xxxxxxx.xxx Inc. Corporation
000 Xxxx Xxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
(Facsimile No: 562/901-2014)
with a copy to:
Xxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx Xxxxxx, Esq.
(Facsimile No: 212/818-8881)
If to Enviro-Clean:
Enviro-Clean of America, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Chairman of the Board
(Facsimile No: 516/931-3530)
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxxxx, Esq.
(Facsimile No: 210/224-2035)
(g) This Agreement shall be governed by and construed under
the law of the State of New York, disregarding any principles of conflicts of
law that would otherwise provide for the application of the substantive law of
another jurisdiction. Each of B2B and Enviro-Clean (i) agrees that any legal
suit, action or proceeding arising out of or relating to this Agreement (except
arbitrations under Section 9) shall be instituted exclusively in New York State
Supreme Court, County of New York, or in the United States District Court for
the Southern District of New York, (ii) waives any objection to the venue of any
such suit, action or proceeding and the right to assert that such forum is not a
convenient forum, and (iii) irrevocably consents to the jurisdiction of the New
York State Supreme Court, County of New York, and the United States District
Court for the Southern District of New York in any such suit, action or
proceeding. Each of B2B and Enviro-Clean further agrees to accept and
acknowledge service of any and all process which may be served in any such suit,
action or proceeding in the New York State Supreme Court, County of New York, or
in the United States District Court for the Southern District of New York and
agrees that service of process upon it mailed by certified mail to its address
shall be deemed in every respect effective service of process upon it in any
such suit, action or proceeding.
(h) No representations, warranties or agreements, oral or
written, express or implied, have been made to any party hereto, except as
expressly provided herein. This Agreement shall be binding upon the respective
parties hereto and their permitted successors and permitted assigns. In the
event that any provision hereof is found invalid or unenforceable pursuant to
judicial decree or decision, the remainder of this Agreement shall remain valid
and enforceable according to its terms. This Agreement constitutes the entire
understanding and agreement between the parties regarding the subject matter of
this Agreement, and supersedes all other prior written and oral communications
regarding this transaction, and may not be altered, modified or amended except
by a written amendment executed by both parties.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute this Agreement as of the date set forth below.
X0XXXXXXX.XXX INC.
By: /s/ Woo Xxx Xxx
----------------------------------
Woo Xxx Xxx
Chief Executive Officer
ENVIRO-CLEAN OF AMERICA CORP.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxx
President
SCHEDULE 1
Product Categories:
Maintenance, Janitorial and Lunchroom products
Safety and Security products
Office Supplies
Computer Supplies and Data Storage products
Furniture and Accessories
Commission Schedule
Commissions earned by Enviroclean based on the Gross Profit Margin of
Enviroclean products sold. The schedule is as follows:
B2B Gross Profit Margin Enviroclean Commission
0.00% to 2.99% 0.00%
3.00% to 3.99% 1.50%
4.00% to 9.99% 2.00%
10.00% to 14.99% 3.00%
15.00% to 19.99% 4.00%
20.00% to 24.99% 5.00%
25.00% + additional 1% commission for each 5% margin
SCHEDULE 2
(As of October 1, 1999)
Specifications
The E-Commerce System will have functionality identical to that of
x0xxxxxxx.xxx, with differences in look, feel content, services and resources
only.
The E-Commerce Systems will be on the website xxx.x0xxxxxx.xxx.
Functionality similarities will be in the following areas, and the
x0xxxxxxx.xxx site will be used as a baseline for features and functionality.
o Pricing Management
o Shipping Methods
o Shipping methods and shipping/handling rates
o Taxation
o Discount schedules
o Specific order information required on each order (i.e. "order
header" items)
o Support for backorder and partial shipments
o Support for product varieties such as - size, color, style, finish
type, captured text fields for imprinting or other use
o Special instructions, requested delivery date, ship-to location for
each product ordered
o Product Navigation
o Product Search
o Detailed Product Descriptions
o Shopping Cart and Order Processing
o Online Customer Service
o Online Help Text
