Exhibit 10.19
DISTRIBUTORSHIP AGREEMENT
THIS AGREEMENT (Agreement) is entered into this 10th day of August 2004,
by and between Reclamation Consulting and Applications Inc., a Colorado, USA
corporation ("RCAI") and Xxxxxxx Marketing, Pty., Ltd., an Indian corporation
("Distributor")
RECITALS
WHEREAS, RCAI manufactures and distributes certain asphalt, cement and
related product release agents, which are used in the construction and similar
industries and which are sold under the RCAI trademarks `Alderox(TM)',
`ASA-12(TM)', `TSR(TM)', DCR(TM) and `KR7(TM)'.
WHEREAS, RCAI desires to appoint Distributor to promote, market, sell,
distribute and service RCAI's products and Distributor desires to promote,
market, sell, distribute and provide customer service for RCAI products in the
territory, defined herein below.
THEREFORE, in consideration of the mutual representations, agreements
and conditions contained in this Agreement, RCAI and Distributor hereby agree as
follows:
SECTION 1: DEFINITIONS
1.1 `Products' means asphalt, cement and related product release
agents, in liquid form which are non-toxic, non-explosive and environmentally
compatible and that RCAI formulates and manufactures. RCAI authorizes
Distributor to distribute these Products under the RCAI Trademarks.
1.2 `Territory' means the entire geographic area of India.
1.3 `Effective Date' means the date first written above which will be
concurrent with the date when an authorized representative of the last party
hereto executes this Agreement.
1.4 `Agreement Year' means any partial or whole calendar year,
commencing with the Effective Date hereof, or any such subsequent period during
the continuance of this Agreement.
1.5 `Trademarks' means all trademarks, trade names, designs, logos or
other protected or protectable commercial symbols used by RCAI to identify RCAI
as the source of the Products to which RCAI grants Distributor the right of
distribution hereunder and as set forth in Schedule A attached hereto.
1.6 `Documentation' means any promotional, advertising, technical or
training materials developed and furnished by RCAI to Distributor hereunder,
specifically intended for the public, including customers and potential
customers and concerning the promotion, distribution, application or handling of
the Products.
1.7 `Distributor' means Xxxxxxx Marketing, Pty., Ltd., and any
sub-distributor or subcontractor, agent, representative, successor or assign to
whom any of the rights or obligations of Distributor herein are assigned or
delegated upon the prior written consent of RCAI.
SECTION 2: GRANT OF EXCLUSIVE DISTRIBUTORSHIP
2.1 As of the Effective Date of this Agreement and for the term
hereof, RCAI hereby appoints Distributor and Distributor hereby accepts the
exclusive appointment to promote, distribute and provide customer service for
the Products in the Territory under the terms and conditions of this Agreement.
2.2 The exclusive right granted herein will apply provided Distributor
uses its best efforts to achieve the Minimum Sales Objectives in the Territory
for each Agreement Year during the term hereof as further described in Section 4
below.
2.3 During the term hereof, Distributor will refrain from directly
promoting, distributing or servicing the Products outside the Territory by
soliciting orders, establishing or operating any branch or facilities for said
purposes outside the Territory, or taking any other direct action to obtain
customer orders outside of the Territory.
2.4 RCAI will use reasonable efforts to refer to Distributor any
customer inquiry or order originating from Distributor's Territory and to advise
Distributor of such inquiries. However, Distributor will not be liable to RCAI
for compensation of any kind in the event of the sale, distribution or servicing
of Products by RCAI in the Territory.
2.5 IThe rights of Distributor to promote, distribute or provide
customer service for the Products include the right of sub-distribution or
subcontract, upon the prior written consent of RCAI. All other rights not
expressly granted in this Agreement to Distributor are reserved to RCAI.
SECTION 3: AUTHORIZED USE OF TRADEMARKS
3.1 As of the Effective Date of this Agreement and for the term
hereof, RCAI hereby grants Distributor the nontransferable right to use the
Trademarks set forth in Schedule A hereto in connection with the promotion,
distribution and servicing of the Products in the Territory. RCAI may amend
Schedule A from time to time.
3.2 Distributor will comply with all RCAI requirements for affixing or
using the Trademarks on or in connection with the Products.
3.3 During the term hereof, Distributor will represent to customers
and other third parties that Distributor is an authorized independent
distributor of RCAI and the Products for the Territories.
SECTION 4: MINIMUM SALES OBJECTIVE
4.1 Promptly after the Effective Date hereof, RCAI and Distributor
will determine a minimum volume of sales of the Products that Distributor will
aim to achieve in the first Agreement Year. RCAI will review the minimum volume
of sales of the Products prior to the beginning of any successive term during
which this Agreement may continue in consultation with Distributor. The minimum
volume of sales for the Territory (`Minimum Sales Objective') for each Agreement
Year will be set forth in Schedule B attached. 4.2 Distributor will use its best
efforts to achieve the Minimum Sales Objective in any given Agreement Year. In
particular, Distributor will:
a) actively promote, distribute and service the Products in the
Territories;
b) diligently pursue sales leads provided by RCAI;
c) initiate sales programs, campaigns, surveys, promotions and
advertising programs;
d) comply with all provisions of Sections 8 and 9 hereof on
training and advertising; and
e) respond promptly and fully to any of RCAI's requests for
information on customers or market conditions in
Distributor's Territories.
f) assist RCAI, when requested, in the development and testing
of new products developed by RCAI
SECTION 5: TERMS OF DELIVERY
5.1 Unless otherwise agreed, RCAI will deliver all Products for which
it accepts purchase orders FOB designated India port, at which time and place
title to the Products and risk of loss of the Products will pass to Distributor.
5.2 Distributor is responsible for all costs and risks of
transportation, insurance, any import duties or other charges, sales, use or
other taxes, and licenses or approvals required for the transport, import,
promotion, distribution and sale of the Products in the Territory, and any loss
or damage sustained.
SECTION 6: TERMS OF PAYMENT
6.1 Payments made to Distributor from RCAI will reflect the prices set
forth on RCAI's Price List for the Products, attached hereto as Schedule C.
6.2 RCAI may amend the Product/Price List of Schedule C from time to
time, any changes to said prices to be effective upon ninety (90) days written
notice by RCAI to Distributor. Any price changes will be based on increases in
the cost of commodities, manufacturing and/or business operations.
6.4 If it is necessary to convert any amount paid or payable to US
dollars from any other currency, the conversion will be made at the rate of
exchange prevailing for the purchase of the US dollars at noon on the date when
the payment was paid or became due.
SECTION 7: QUALITY CONTROL, SAFETY STANDARDS
7.1 In order to ensure that a high standard of reliability,
application and handling of the Products is maintained and that proper use of
the Trademarks in connection with the Products is made, RCAI will exercise its
rights of supervision and quality control over Distributor's provision of
customer service for the Products during the term of this Agreement.
7.2 Distributor will:
a) employ and maintain sufficient personnel to perform the
obligations of Distributor herein and ensure their adequate
training in accordance with Sections 8 and 9 hereof;
b) provide customers with adequate information and training on
the safe and effective handling of the Product(s) and their
applications;
c) furnish all market development information reasonably
requested by RCAI concerning the customers of Products sold
by Distributor; and
d) notify RCAI by phone, confirming in writing or confirming by
e-mail, as promptly as practicable after it comes to
Distributor's attention, of any customer complaints
regarding the Products.
e) advertise & publicize the Products in the Territory in
accordance with any RCAI advertising and promotional
guidelines set forth in any Documentation or other
materials, or as provided during any training or market
development assistance by RCAI.
SECTION 8: LIMITED WARRANTIES FOR PRODUCTS
8.1 RCAI hereby warrants with respect to all Products delivered to
Distributor pursuant to the terms and conditions hereof that all such Products
will be suitable for the applications intended, provided they are used as is
intended from the date of delivery to Distributor until one (1) year from the
pick-up date.
8.2 RCAI's entire liability and Distributor's customers' exclusive
remedy is limited to the replacement without charge, of any Products which prove
not to function as intended within the warranty period.
8.3 RCAI will not be liable for the replacement of Products which, in
RCAI's sole opinion, have been subjected to misuse, accident, alteration,
neglect or damage.
8.4 The warranties provided herein are the only warranties made by
RCAI and excludes all other express and implied warranties including those of
merchantability and fitness of the Products for a particular purpose.
SECTION 9: DISTRIBUTOR'S LIABILITY
9.1 Distributor will limit its representations on warranty with regard
to the Products to correspond to the provisions of Section 11 hereof.
SECTION 10: PROPRIETARY RIGHTS
10.1 Distributor on behalf of itself, its officers, employees, agents,
representatives, and assigns:
a) acknowledges that RCAI is the owner of all proprietary
rights in the Products and the Trademarks, to which RCAI
grants Distributor the rights to distribute and use pursuant
to the provisions of this Agreement; and
b) will refrain from any unauthorized or infringing use of the
Products, Trademarks or any Documentation for the term
hereof and thereafter.
10.2 Promptly after Distributor learns of any suspected or actual
unauthorized third party use of the Products, Trademarks or Documentation,
Distributor will notify RCAI of said unauthorized use or disclosure.
10.3 Should RCAI decide to take any action to defend against or
terminate said infringing or unauthorized use of its proprietary rights in the
Distributor's Territory, Distributor will, upon RCAI's request, render any
assistance RCAI may require, at RCAI's expense.
SECTION 11: TERM AND TERMINATION
11.1 This Agreement will commence on the Effective Date hereof and
will continue for an initial term of three (3) year (Initial Term). This
Agreement may be renewed for one or more successive terms of 1 year each
(Successive Term) by 90 days prior written notice of RCAI to Distributor. At the
time of renewal Distributor will:
a) have complied with its best efforts obligation to achieve
the Minimum Sales Objective for the Agreement Year
concerned; and
b) have complied with all other obligations of this Agreement
to RCAI's satisfaction.
11.2 RCAI may terminate this Agreement at any time during the Initial
Term or any Successive Term by giving written notice to Distributor, notice
effective upon the date given, in the event of any one or more of the following:
a) the failure of Distributor to use its best efforts to
achieve the Minimum Sales Objective required hereunder. A
minimum sales objective shall be mutually agreed upon
commencing at the end of six (6) months from execution of
this Agreement;
b) Distributor's breach of any obligation concerning RCAI's
proprietary rights;
c) Distributor's breach of any obligation or representation,
other than those of paragraphs a) and b) above;
d) Distributor's assignment of this Agreement or any of rights
granted hereunder by Distributor by agreement or operation
of law, without the prior written consent of RCAI;
f) any legal or business transaction or event which causes a
change in majority ownership of Distributor and effectively
results in an assignment of this Agreement to owners
substantially different from the owners of Distributor at
the time of execution of this Agreement without the prior
written consent of RCAI; and
g) any insolvency or inability of Distributor to pay debts as
and when due, or the initiation or pendency of any
proceeding involving the insolvency, bankruptcy,
reorganization, or liquidation of Distributor.
11.4 In the event that RCAI claims Distributor is in breach of any
provision of this Agreement, it shall give six (6) months written notice of such
deficiency and Distributor shall have a period of six (6) months to cure said
deficiency.
SECTION 12: EFFECTS OF TERMINATION
12.1 Subject to Section 15.6, upon termination, Distributor will
immediately discontinue the promotion, distribution and servicing of the
Products and will cease to represent itself as an authorized Distributor of
RCAI.
12.2 Distributor will further discontinue any use of RCAI's Trademarks
and any Documentation. At RCAI's option, Distributor will certify destruction of
Documentation.
12.3 Distributor will refrain from using any name, xxxx or logo which
may create a likelihood of confusion with RCAI's Trademarks and will further
refrain from copying in whole or in part any of the Confidential Information or
Documentation.
12.4 Unless termination occurs for cause, Distributor may sell any
Products remaining as of the date of termination, provided it does so within 30
days of the date of termination. All other Products remaining thereafter shall
be purchased by RCAI from Distributor at Distributor's blending cost.
12.5 Nothing herein will relieve or extinguish any of Distributor's
payment obligations under any provision of this Agreement. Nevertheless, in the
event of insolvency or refusal to pay for any reason by Distributor, RCAI may
take reasonable actions to mitigate its losses by sale of the Products ordered
to other distributors or customers.
12.6 Distributor will offer to RCAI and RCAI may elect to assume the
rights and obligations of any agreements between Distributor and its customers
for the service of the Products, effective as of the date of termination or
expiration.
12.7 In no event will termination or expiration with or without cause
of this Agreement entitle Distributor to any compensation by RCAI on any grounds
whatsoever.
SECTION 13: OVERNING LAW, ARBITRATION, ATTORNEY'S FEES
13.1 Governing Law. This Agreement together with the Schedules hereto
and any valid agreement subsequently entered into between the parties regarding
the subject matter hereof will be governed and construed in accordance with the
laws of California, United States of America.
13.2 Dispute Resolution. In the event of any controversy or claim
arising out of or relating to this Agreement, the parties agree to try in good
faith to settle the claim by mediation administered by the American Arbitration
Association (`AAA') before resorting to arbitration. Any controversy or claim
that cannot be resolved by mediation will be settled by arbitration administered
by the AAA in Orange County, California. Judgment on the award rendered by the
arbitrator will be final and may be entered in any court having jurisdiction
thereof.
13.3 In the event of unauthorized use or disclosure of the Products,
Trademarks, or Documentation, Distributor acknowledges that RCAI will be
irreparably harmed and, as there is no adequate remedy at law, RCAI may seek and
obtain injunctive relief against Distributor for any harm arising from or
relating to said unauthorized use or disclosure. Moreover, should the interim
measures for injunctive relief under the AAA Rules prove inadequate, RCAI may
seek injunctive relief, specific performance or any other equitable relief from
any competent court having jurisdiction.
13.4 Attorney's Fees. In the event an action or arbitral proceeding is
instituted relating to this Agreement, the party which the arbitrator or court
of competent jurisdiction shall deem to have substantially prevailed therein
shall be entitled to recover all costs, expenses, and attorney's fees adjudged
by such arbitral tribunal or court.
SECTION 14: GENERAL PROVISIONS
14.1 Relationship of the Parties. Nothing in this Agreement will be
construed as creating a partnership or joint venture between the parties or
making Distributor a shareholder, agent, employee or other representative of
RCAI, but in all of its operations hereunder Distributor will be an independent
contractor, conduct its business at its own cost and expense and make no
representation, express or implied, that it is an employee, partner,
shareholder, joint venture or other representative of RCAI. Distributor will
have no authority to make any representation or warranty on behalf of RCAI,
except as specified in this Agreement.
14.2 Force Majeure. In the event that either party is rendered wholly
or partially unable to carry out its obligations under this Agreement due to
reasons beyond its control (including, without limitation, acts of God,
industrial disputes, war or civil disturbances, fire, floods, storms,
earthquakes, landslides, acts of any governmental authority or agency, embargoes
or unavailability of equipment or transport), the failure to so perform will be
excused and not constitute default hereunder during the continuation of the
intervention of such force majeure. The party affected shall give prompt notice
to the other party, shall take all reasonable steps to eliminate the intervening
event and shall resume performance as promptly as is practicable.
14.3 Assignment. This Agreement will be binding upon and inure to the
benefit of RCAI, its successors and assigns. This Agreement will not be
assignable or transferable by Distributor unless prior written consent is
obtained from RCAI and provided that the assignee or transferee agrees in
writing to be bound by all the terms, condition and obligations of this
Agreement by which Distributor is bound and Distributor remains subject to the
obligations on confidentiality and proprietary rights set forth herein. Any
assignment of this Agreement or any rights or obligations arising therefrom
without RCAI's prior written consent shall be deemed void.
14.4 Severability. If any provision of this Agreement is held to be
invalid, illegal, or unenforceable by a court or other tribunal of competent
jurisdiction, this Agreement will be considered divisible as to such provision
and the remaining provisions hereof will remain valid and binding.
14.5 No Waiver. Failure or delay by either party to exercise or
enforce any term, right, power or privilege of this Agreement will not operate
as a waiver thereof nor will any single or partial exercise of any term, right,
power or privilege preclude any other or further exercise thereof.
14.6 Entire Agreement. This Agreement, and all schedules hereto form
the entire agreement of the parties hereto with respect to the subject matter
hereof. No modification, renewal, extension or waiver of this Agreement or any
of its provisions will be binding unless made in writing and signed by each
party's duly authorized representative, except as to the Schedules attached
hereto, which RCAI may amend from time to time during the term hereof.
14.7 Survival. Neither termination nor expiration will affect any
right or obligation of either party hereunder which by its terms continues
beyond the effective date of termination or expiration.
14.8 Notices. Unless otherwise provided herein, any notice or other
written communication required or permitted in connection with this Agreement
will be properly given when made in writing and sent by first-class registered
or certified airmail, return receipt requested, or by courier or other personal
delivery service, and properly addressed to the appropriate party at the address
set forth above, until changed by written notice. Notice shall be effective when
given, provided it is given in accordance with this Section 17.8.
If to RCAI:
Xxxxxx Xxxxxx
RCAI
00000 Xxxxxxxxx Xxxx., Xxx. 000
Xxxx Xxxxxx, XX 00000
If to Xxxxxxx Marketing, Pty., Ltd. ----------------------
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IN WITNESS WHEREOF, RCAI and Distributor have each caused this
Agreement to be executed on its behalf by it's duly authorized officer as of the
date first written above.
RCAI XXXXXXX MARKETING, PTY., LTD.
By: /s/ XXXXXX XXXXXX By: /s/ XXXXX XXXXXXX
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Xxxxxx Xxxxxx Xxxxx Xxxxxxx
President Managing Director
