Manufacturer's
Representative Agreement
This Representative Agreement (the "Agreement") made and entered into this 16th
day, November, 2001 by and between HydroFlo Incorporated, a North Carolina
corporation located at 0000 Xxxxxxxx Xxxx. Xxxxxxx, XX 00000 (the "Company") and
_________________________, a _____________ corporation located _________________
(the "Manufacturer's Representative").
RECITALS
A. The Company is engaged in the manufacture and sale of water
treatment products, certain of which products are more particularly described in
the attached Schedule A, as the same may be hereafter amended by the mutual
consent of the parties (collectively and including any other products listed in
the Company's catalogues from time to time, the "Products"); and
B. The Manufacturer's Representative engages to sell such Products to
the end-users listed on the attached Schedule B in connection with those
end-users' operations located in the geographic areas also listed on the
attached Schedule B, as the same schedule may be hereafter amended by the mutual
consent of the parties (the "Customers"); and
C. The Company is willing to manufacture and supply Products to the
Representative and to appoint the Representative as a distributor of the
Products on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual promises
and covenants set forth herein, the parties hereby agree as follows:
1. DISTRIBUTION RIGHTS. Subject to the terms and conditions set forth
herein, the Company hereby appoints the Representative as the exclusive
distributor of the Products to the Customers for the term of this Agreement as
provided in Section 2 below. The Representative agrees that it shall not,
directly or indirectly, offer, market, sell or otherwise deal in any products
substantially similar in design or usage to the Products for sale to the
Customers. No right or license to manufacture the Products are granted to the
Rep by this Agreement.
2. TERM. This agreement shall commence on and, unless sooner terminated
as provided in Section 7, shall continue in full force and effect for a period
of one (1) year (the "Term").
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3. DUTIES OF THE REPRESENTATIVE.
(a) The Representative shall use his best efforts to promote the
sale of the Products to the Customers.
(b) Estimated units to be sold, $ _________________ within the
State of _________________.
(c) The Representative shall comply with all appropriate federal,
state, county and local laws, rules and regulations pertaining
to this Agreement and/or the acquisition, receipt, holding,
selling, distribution or advertising of the Products.
(d) The Representative shall, at its own expense, make, execute or
file such reports and obtain such licenses as are required by
law or any public authority with respect to this Agreement
and/or the acquisition, receipt, holding, selling,
distributing or advertising of the Products.
(e) The Representative shall be solely responsible for the
declaration and payment of all local, state and federal taxes
as may accrue because of the Representative's activities in
connection with this Agreement.
(f) The Representative shall maintain as confidential and
proprietary all non-public information and details concerning
(i) this Agreement; (ii) the Products and (iii) the Company's
Marketing and Compensation Program. Notwithstanding the
foregoing, either party to this Agreement may disclose any
otherwise confidential information if the disclosure is
required by a court or governmental authority.
(g) Exercise due diligence to keep the Company informed, through
regular written reports, with respect to any observations or
complaints received from any of the Customers with regard to
any of the Products.
(h) Bear its own costs and expenses incurred in performing its
obligations hereunder.
4. ORDERS AND DELIVERY. The Representative shall qualify submitted
purchase orders for Products signed by a duly authorized officer and containing
complete information regarding Product price, item number, quantity, requested
delivery dates, shipping instructions and shipping address (each, a "Purchase
Order"). Promptly following receipt of Purchase Order, the Company shall
acknowledge and confirm the order. Confirmed Purchase Orders shall be governed
by the terms set forth herein to the exclusion of any additional or contrary
terms set forth in the parties' standard sales transaction forms.
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5. TERMS OF SALE AND PAYMENT.
(a) During the Term, the Representative shall receive a commission
of ten per cent (10%) of the then current published list price
of each Product, less shipping costs. The Company shall
furnish any revised price list to the Representative with a 30
day advanced notice of price increases. The list price shall
be adjusted from time to time at the discretion of the Company.
(b) All equipment produced by the company is sold f.o.b. the
company's Raleigh, NC offices.
(c) The Customer shall pay for the Products in U.S. Currency by
wire transfer or other payment of immediately available funds
within 30 days of receipt of the invoice for the same.
6. LIMITED TRADEMARK LICENSE. During the Term, the Company grants to the
Representative a limited, non-exclusive, royalty-free right and license to use,
but not to register the name and trademark "HydroFlo." Except as provided in
this Section 6, the Representative agrees not to utilize the HydroFlo logo,
trade name or trademarks in any way or to name HydroFlo executives, employees,
members or affiliates in any advertising format or medium without the express
written consent of HydroFlo.
7. TERMINATION. In the event the Representative breaches any provision of
this Agreement, the Company may terminate this Agreement immediately and shall
have the right to seek all other available remedies. Upon the termination of
this Agreement, the Company will complete the manufacture of all in-process
Products subject to a Confirmed Purchase Order as provided in Section 4 and the
Customer will purchase the same at the prices then in effect.
8. STATUS OF THE REPRESENTATIVE. The Representative is duly organized and
is qualified and has all consents, permits and authorizations required to
perform its obligations under this Agreement.
9. RELATIONSHIP OF THE PARTIES. The Representative acknowledges that it
is an independent contractor. Nothing in this Agreement, its provisions or the
transactions, obligations and relationships contemplated hereby shall constitute
either party to this Agreement as the agent, employee or legal representative
for the other party hereto for any purpose whatsoever, nor shall any party to
this Agreement hold itself out as such. This Agreement does not create and shall
not be deemed to create a relationship of partners, joint venturers, associates
or principal and agent between the parties hereto, and the parties acknowledge
that each is acting as a principal hereunder. This Agreement does not constitute
either the sale of a franchise or a dealership to the Representative.
10. AMENDMENT. This Agreement may only be amended by mutual written
agreement of the parties.
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11. ENTIRE AGREEMENT. It is expressly agreed by the Parties that there are
no verbal or written representations, understandings, stipulations, agreements,
or promises relating to the subject matter of the Agreement not incorporated in
writing in the Agreement. This Agreement constitutes the entire Agreement
between the Parties hereto, and it cannot be amended except as provided in
Section 10 above.
12. BINDING AGREEMENT; GOVERNING LAW AND VENUE. The Representative
acknowledges that it has read and understands this Agreement and that this
Agreement shall become binding upon the Representative upon execution by both
parties. This Agreement shall be governed by the laws of the State of North
Carolina. Any action or other proceeding initiated by one party to this
Agreement against the other party relating to or for the enforcement of this
Agreement shall be brought in any court of competent jurisdiction in Raleigh,
North Carolina.
13. NOTICE. Any notice or invoice required or permitted herein shall,
unless otherwise specified in this Agreement, be given by facsimile, telex,
cable, registered mail-return receipt requested, or receipted overnight delivery
properly addressed to the party to be notified at its address as stated below,
and shall be deemed delivered when so transmitted.
If to the Company:
HydroFlo, Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attn Xx. Xxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to the Representative:
_______________________
_______________________
Telephone: ____________
Facsimile: ____________
14. FORCE XXXXXX. Except as to payment obligations, neither party shall be
liable or considered in default under this Agreement when the delay of
performance is caused by circumstances beyond its reasonable control and
occurring without its fault or negligence, including failure of suppliers,
subcontractors, and carriers, acts of civil or military authorities, national
emergencies, fire, flood, hurricane, acts of God, insurrection, and war,
provided the affected party immediately provides notice thereof to the other and
does those things reasonably possible to resume the timely performance of its
obligations under this Agreement.
15. VALIDITY. In the event that any provision of this Agreement (a) is
found to be invalid or unenforceable by final decision of a court of competent
jurisdiction, or (b) is rendered invalid by reason of subsequently enacted
legislation then that provision shall be of no force or effect, but the
remainder of the Agreement shall continue in full force and effect. If a
provision of this Agreement fails for either of the reasons listed above, the
parties shall enter into immediate negotiations for the purpose of arriving at a
mutually satisfactory replacement for such provision.
16. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITIES.
(a) THE COMPANY PROVIDES ITS EQUIPMENT FOR THE PURPOSE OF AERATION
TO WATER AND WASTEWATER, HOWEVER, SINCE THE CHARACTERISTICS
OF WATER AND WASTEWATER ARE HIGHLY VARIABLE AND THOSE
CHARACTERISTICS AFFECT THE ABILITY OF OXYGEN TO ENTER AND
REMAIN IN THE WATER AND WASTEWATER, THE COMPANY SHALL ONLY
WARRANT THE MATERIALS AND WORKMANSHIP OF THE EQUIPMENT AND THE
VOLUME OF AIR INTRODUCED INTO THE WATER AS PROVIDED IN CURRENT
AND FUTURE PRODUCT DOCUMENTS. NO OTHER WARRANTY IS EXPRESSED
OR IMPLIED FOR THE MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED,
FOR ANY OF THE PRODUCTS.
(b) THE COMPANY SHALL IN NO EVENT BE LIABLE, WHETHER IN CONTRACT,
TORT, OR ON ANY OTHER BASIS, FOR CONSEQUENTIAL, INCIDENTAL,
INDIRECT OR PUNITIVE DAMAGES, OR LOSS OF PROFITS OF ANY KIND
SUSTAINED BY THE REPRESENTATIVE, OR BY ANY PERSON DEALING WITH
THE REPRESENTATIVE, IN CONNECTION WITH THE PRODUCTS. THE
COMPANY 'S LIABILITY FOR ANY CLAIM OF ANY KIND (INCLUDING,
WITHOUT LIMITATION, CLAIMS BASED UPON ANY EXPRESS WARRANTY
CONTAINED HEREIN AND CLAIMS BASED UPON ANY WARRANTY IMPLIED BY
LAW), SHALL BE LIMITED, AT THE COMPANY 'S OPTION, TO
REPLACEMENT OF THE PRODUCTS OR THE DIFFERENCE BETWEEN THE
INVOICED AMOUNT AND THE MARKET PRICE OF THE PRODUCTS AT THE
TIME AND PLACE SPECIFIED IN THE PURCHASE ORDER OR THE RETURN
TO THE REPRESENTATIVE OF THE AMOUNT PAID BY THE
REPRESENTATIVE, AND THE REPRESENTATIVE EXPRESSLY WAIVES ANY
RIGHT IT MIGHT HAVE TO ANY OTHER MEASURE OF DAMAGES, STATUTORY
OR OTHERWISE.
(c) All warranty disclaimers contained herein are intended to
comply with applicable law and shall be enforced to the
fullest extent possible under applicable law. To the extent
that any warranty disclaimer is deemed invalid under any law,
which may be applied, any related non-disclaimable warranties,
whether express or implied, shall be limited in duration to a
period of six (6) months.
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(d) Neither the Representative, nor any agent, representative or
designee of the Representative shall make any warranties,
representations or guarantees to any person, either orally or
in writing, in the name of or on behalf of the Company without
the Company's prior written consent.
(e) Any action for breach of this Agreement or for breach of any
warranty, express or implied, of the Company shall be
commenced within one (1) year from the date of the delivery of
the Products.
IN WITNESS WHEREOF, the parties hereto, through their duly authorized
officers, have executed this Agreement as of the date first written above.
HYDROFLO, INC.
By: __________________
Name: X X Xxxxxx
Title: President
___________________________
By: __________________
Name: __________________
Title: __________________
