Exhibit 3(xii)
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,
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this Agreement shall remain in force and effect until October 1, 2004.
2. Sale of EC Products through B2B Site.
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2.1 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.
2.2 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.
2.3 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
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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.
2.4 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.
2.5 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.
2.6 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.
2.7 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.
2.8 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
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accountants access to the books and records of Enviro-Clean to confirm the
information contained in any such statement.
2.9 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.
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4.1 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.
4.2 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.
4.3 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.
4.4 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.
4.5 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
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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.
4.6 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.
4.7 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.
4.8 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.
4.9 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
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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.
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4.1 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.
4.2 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.
4.3 All interfaces and other integrating technologies,
adaptations 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.
4.4 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.
4.5 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.
4.6 The parties shall retain electronic transaction data for a
minimum of twelve (12) months from the date it is first generated.
5. Confidential Information.
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5.1 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.
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5.2 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.
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6.1 Enviro-Clean represents and warrants that:
(a) 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.
(b) 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
(c) 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.
6.2 B2B represents and warrants that:
(a) 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.
(b) B2B owns or has the right to use the E-Commerce System for
the delivery of the services contemplated by this
Agreement.
(c) 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.
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7. Non-Competition.
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7.1 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.
7.2 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.
7.3 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.
7.4 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.
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8.1 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.
8.2 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.
8.3 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
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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.
8.4 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.
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9.1 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.
9.2 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
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matters. In order to resolve a dispute, the parties shall first follow the
informal and escalating procedures set forth below.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
9.3 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.
9.4 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.
9.5 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.
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10.1 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.
10.2 Enviro-Clean may terminate this Agreement upon ten days prior
written notice if it experiences Repeated Unavailability of the Vendor
Management Services. "Repeated
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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.
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11.1 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.
11.2 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.
11.3 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.
11.4 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.
11.5 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 willful misconduct of B2B.
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11.6 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)
11.7 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
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Xxxxxxxx Xxxxx 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.
11.8 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: ________________________________
Woo Xxx Xxx
Chief Executive Officer
ENVIRO-CLEAN OF AMERICA CORP.
By: ________________________________
Xxxxxxx X. Xxxxx
President
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