[HACH Logo]
Distributorship Agreement
Between Hach Company and EuroTech (Far East) Ltd.
This agreement made and entered into between Hach Company, Inc., a corporation
organized and existing under the laws of the State of Delaware, U.S.A., having
its principal offices at 00xx Xxxxxx and Lindbergh Parkway (P.O. Box 389),
Xxxxxxxx Xxxxxxxx 00000, Xxxxxx Xxxxxx of America ("Hach") and
EuroTech (Far East) Ltd.
00/X Xxx Xxxxx Xxxx Xxxxxx
00 Xxxx Xxxx Xxxx Xxxx
Xxxx Xxxx ("Distributor").
Whereas Hach is one of the leading manufacturers of laboratory testing
apparatus, process analyzers and chemicals particularly intended for analysis of
water and other substances the ("Products"); and
Whereas Distributor has the commercial and technical experience and
capability as well as technically trained personnel to promote, sell and service
the Products:
Now, therefore, the parties hereto agree as follows:
1.0 Definitions
1.1 The "Territory" shall mean the geographic area described on Exhibit A,
Territory, attached hereto.
1.2 The "Products" shall mean the items of the Product lines designated on
Exhibit B, Products, attached hereto. The parties may add to or otherwise modify
said list by mutual written agreement.
1.3 "Private Label Products" shall mean those products which Hach supplies to
its customers which bear the customer's label, or those products purchased from
Hach under a special agreement, or those products which are otherwise
denominated by Hach as Private Label Products.
1.4 "Contract Date" is the date shown beneath the signature of Hach Company at
the end of this Agreement.
2.0 Appointment of Distributor
2.1 Hach hereby appoints EuroTech (Far East) Ltd. Distributor of Products in
the Territory, and Distributor accepts said appointment, subject to all terms
and conditions hereof.
2.2 Hach may appoint other person(s) or company(s) to distribute or represent
the Products in the Territory during the term of this Agreement or any extension
hereof.
2.3 Hach does not guarantee the Products will not at times be sold to customers
in the Territory by Distributors or representatives established outside the
Territory.
2.4 Hach may sell Products directly to customers in the Territory where
requested by a customer or where, in Hach's sole discretion, Distributor's
coverage of the Territory is not adequate.
3.0 Purchase, Shipment
3.1 Distributor may sell only those Products described in Exhibit B, Products
in the Territory.
3.2 Absent a separate, written agreement, Distributor may not sell Private
Label Product, and no commission is due or shall be extended for such sales.
3.3 Subject to availability, Distributor shall place firm orders for and Hach
shall send to Distributor, Products in quantities sufficient to meet
Distributor's demand for the Products in the Territory.
3.4 Hach shall sell Products to Disributor, Ex Works (Factory, Ames, Iowa
U.S.A.) and all risk of damage or loss shall pass to Distributor at this point.
Hach retains title to the Products until carrier delivers Product(s) at first
foreign (non U.S.) port of entry.
3.5 Products shall be sold to Distributor at Hach's Distributor List Prices in
effect at the time the order is accepted by Hach. All sales shall be made under
Hach's standard terms and conditions of sale, as modified and subject only to
the terms of this Agreement which shall prevail in the event of any
inconsistency between this Agreement and those terms and conditions of sale.
Hach shall furnish to Distributor from time to time a Distributor Price List and
a recommended price list covering the Products. Hach may from time to time and
without prior notice to Distributor change either of these price lists.
3.6 Each order placed by Distributor shall be subject to acceptance by Hach in
the U.S. Hach shall not be obligated to accept any order. Hach shall not be
liable to any party for its failure or refusal to accept any order.
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3.7 Hach shall not be liable for loss, damage, detention, delay or failure to
deliver all or any part of the Products resulting from causes beyond its
control, including but not limited to fires, strike, insurrection, riots,
embargoes, car shortages, delays in transportation, inability to obtain
supplies and raw materials, requirements or regulations of the United States
Government or any other civil or military authority. Hach shall not be liable
for any loss or damage arising from such delay.
3.8 Quoted delivery dates are merely approximate. Delay in delivery shall not
entitle Distributor to cancel an order. Distributor's acceptance of delivery of
the Products shall constitute a waiver of all claims for loss or damage due to
delay.
3.9 Hach shall have the right to discontinue the availability of any Product,
or to make design changes or improvements in the Products, at any time without
notification to Distributor, without incurring any liability to Distributor or
to Distributor's dealers or customers and without any obligation to apply any
such changes or improvements to Products previously purchased by Distributor or
in use in the Territory.
4.0 Terms of Payment
4.1 Payment for Products shall be made by Distributor in U.S. dollars in
accordance with Hach's standard credit practices for international sales.
Ability to complete payments to Hach in the currency of the United States of
America as stipulated herein is of the essence of this Agreement. If by virtue
of any regulation or order of any government authority in the Territory
Distributor is unable to make payments in accordance with this agreement, Hach
may elect to terminate this Agreement
4.2 Notwithstanding Section 4.1, payment may be made in U.S. dollars or in any
alternate currency upon which the parties hereto mutually agree in writing prior
to payment in that alternate currency.
4.3 All overdue invoices shall accrue interest at the rate of one and one-half
(1.5%) percent per thirty (30)-day period, with each fraction of a period
counting as a full period.
5.0 Duties of Distributor
5.1 Distributor agrees to maintain a suitable place or places of business with
adequate facilities for the sale and servicing of the Products. Such facilities
shall be staffed by qualified personnel and shall remain open to customers
during business hours customary in the trade and in the Territory. Distributor
shall allow Hach's representatives at any reasonable time to examine
Distributor's place of business and inventories and to test Distributor's
equipment and facilities so as to verify Distributor's compliance with this
agreement.
5.2 Distributor agrees to exert its best efforts to promote and sell the
Products in the Territory and to provide competent post-sales servicing for all
Products located in the Territory regardless of whether or not sold by
Distributor.
5.3 Neither Distributor nor any related or affiliated person of Distributor
shall, during the term of this Agreement, sell or represent any goods which
conflict or compete with the Products.
5.4 Distributor agrees to inform Hach in writing of all products or companies
other than Hach, which or from whom Distributor purchases for resale or
otherwise represents during the term of this Agreement.
5.5 Distributor agrees to keep at all times during the term of this Agreement
an adequate inventory of Product as reasonably required to meet the Sales
Forecast for the Territory. Distributor shall execute such Sales Forecast
promptly upon signing this Agreement or at the start of Hach's fiscal year as
mutually agreed upon. In the event said Sales Forecast is not executed before
the first day of the third month following the Contract Date of this Agreement,
Hach may terminate this Agreement with thirty (30) days written notice to
Distributor.
5.5.1 An Annual Sales Forecast(s) will be provided by Distributor to
Hach by June 30 of each contract year.
5.6 Distributor shall furnish an Annual Sales and Operations Report ("Report")
to Hach, This Report is due on February 1 of each year and Hach must receive the
Report no later than February 28. The Report shall contain accurate information
as to sales, customer demand, customer reactions, activities of competitors,
information on political and economic developments that could affect in any way
the financial condition of the Distributor and/or the ability of Distributor to
promote and sell the Products in the Territory and such other information as
Hach may reasonably request, including information on the financial condition of
Distributor.
5.7 Distributor shall maintain records of all sales and keep them on file for
three (3) years. Distributor shall allow Hach's employees or agents to examine
such records at any reasonable time. Distributor agrees that all customers or
potential customers for the Products have been developed and created solely for
the benefit of Hach, and any list of customers or potential customers for the
Products shall be deemed to be the property of Hach.
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5.8 Distributor shall assist Hach in obtaining information regarding the
financial stability and credit history of any customer or prospective customer
with respect to which Distributor forwards an order directly to Hach for
acceptance in return for a sales commissions, as provided herein.
5.9 If Distributor services Hach equipment it shall do so according to Hach's
"International Instrument Service Policy and Procedure of Hach Company and of
Hach Europe, S.A."
6.0 Resale of Products by Distributor
6.1 Distributor shall actively solicit orders from prospective and actual
customers, either by calling on same with its own personnel, through its dealers
or by mailing adequate printed material and brochures.
6.2 Hach may visit customers and prospective customers in the Territory and
may, but shall not be required to, afford Distributor an opportunity to
accompany the Hach representative on any such visit. Any order placed by a
customer during a joint visit by Hach and Distributor shall be for the account
of Distributor.
6.3 Distributor shall establish a Customer Price List which shall be made
available to Hach upon request. In doing so, Distributor agrees to give due
consideration to Hach's recommended customer list prices, and prices of Hach
Product and competitive products in the U.S.A. and locally. Said Price List
shall be established to afford sales potential for the Products and at the same
time to secure due compensation to Distributor for the sale and service efforts
in the Territory.
6.4 Distributor shall not solicit or advertise in jurisdictions outside the
Territory unless this restriction on solicitation or advertisement is prohibited
by law. Distributor shall not maintain branches, places of business or
warehouses outside the Territory for the Products without the prior written
consent of Hach.
6.5 Distributor shall not, without the prior written consent of Hach, alter the
Products in any manner including, without limitation, removal or alteration of
labels, tradenames, trademarks, notices, serial numbers or other identifying
marks, symbols or legends affixed to any of the Products or their containers or
packages
7.0 Sales Literature
7.1 Hach shall furnish to Distributor reasonable quantities of sales literature
and brochures in the English language and using United States standard measures
and weights. Distributor shall be responsible for carrying out, at its own cost
and expense, any translations or adaptations of such material required by local
law, provided that no such translations or adaptations shall be disseminated by
Distributor without the prior written consent of Hach. Nonetheless, Distributor
agrees to indemnify Hach and hold it harmless from any liability, damages, costs
and expenses incurred by Hach with respect to any improper or incorrect
translation or adaptation of the above mentioned materials.
7.2 Upon termination of this Agreement Distributor shall promptly deliver to
Hach all such material and any translations and/or adaptations thereof which may
be in Distributor's possession or control, in accordance with instructions from
Hach.
7.3 Hach shall have the right to distribute literature and brochures directly
to the customers and prospective customers in the Territory based on mailing
lists that Hach may develop. Where Hach and Distributor together develop such
lists, Distributor may be requested by Hach to pay up to one-half of the cost of
any such distribution.
8.0 Appointment of Dealers
Distributor shall not appoint any representatives, agents, sub-Distributors or
dealers ("Appointees")to assist in the promotion and/or sale of the Products in
the Territory without the prior written consent of Hach. In the event that Hach
shall consent to any such appointments, it is understood that any such Appointee
shall not be considered a representative, agent, distributor, dealer or employee
of Hach, and shall derive no rights vis-a-vis Hach by virtue of such
appointment. Accordingly, Distributor agrees to indemnify Hach and hold it
harmless from any liability, damages, costs or expenses (including reasonable
attorney's fees) incurred by Hach as a result of acts of the Appointees. Further
Distributor shall indemnify and hold Hach harmless from any liability, damages,
costs or expenses (including reasonable attorney's fees) incurred by Hach with
respect to the termination and/or appointment of any such Appointees.
9.0 Government Regulations
9.1 Distributor agrees to obtain at its own expense any import license, foreign
exchange permit, or other permit or approval it may need for the performance of
its obligations under this Agreement and to comply at its own expense with all
applicable laws, regulations and orders of the government(s) of the Territory
any instrumentality thereof.
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10.0 Warranty
10.1 Hach warrants that the Products are free from defects in material and
workmanship for a period of one (1) year from the date of shipment unless
otherwise specified by Hach.
10.2 The sole obligation of Hach is to repair or replace, at its option, and
without charge, any Product or part of its manufacture which it agrees is
defective.
10.3 This warranty does not cover limited-life electrical components which
deteriorate with age such as but not limited to: vacuum tubes, batteries, lamps,
photo cells, electrodes. In the case of equipment and accessories not
manufactured by Hach, but which are furnished with equipment of Hach's
manufacture, if warranty is extended by the manufacturers thereof and
transferable to Distributor, Hach transfers such warranty.
10.4 This warranty does not cover parts or Products which in Hach's or
Distributor's opinion have become worn from normal use or have been damaged by
misuse, negligence or accident, or which disassembly and/or repairs have been
attempted causing said defect.
10.5 UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT, HACH MAKES NO WARRANTY OF
ANY KIND WHATSOEVER WITH RESPECT TO ANY PRODUCTS FURNISHED HEREUNDER. HACH
EXPRESSLY DISCLAIMS ANY WARRANTIES IMPLIED BY LAW, INCLUDING BUT NOT LIMITED TO
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT
SHALL HACH BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
10.6 Distributor, acting only on its behalf, shall in the sale contract between
it and its retail customer, provide a warranty similar to the one given to
Distributor by Hach herein. Distributor shall promptly perform and fulfill any
and all of the terms and conditions of each such warranty extended. Distributor
agrees not to extend to its customers any Product warranty that is different
from Hach's limited warranty set forth in this Section 10.
11.0 Industrial Property
Distributor recognizes that Hach is the owner, assignee or licensee of various
industrial property rights in the United States and throughout the world,
including patents, trademarks, trade names, designs, insignia and confidential
information, and Distributor expressly acknowledges and agrees that it will not
have or acquire any rights in or to any such industrial property rights used or
adopted by Hach anywhere in the world, or used or adopted by any company related
to or affiliated with Hach, whether or not such industrial property rights are
registered in the Territory. Recognizing the importance of such rights to Hach's
business and good will, Distributor agrees as follows:
11.1 Should Distributor become aware of trade practices or actions posed or
threatened by third parties that may injure the business that Distributor
conducts pursuant to this Agreement or Hach's business and good will or the
above-mentioned property rights, full details of the same shall be promptly
supplied to Hach, and Hach or any person authorized by it shall have the right
to take or direct such action as Hach may deem proper against such third
parties. Distributor shall in no event take any action in protection of Hach's
rights or in furtherance of Hach's interest without Hach's written
authorization.
11.2 During the continuance of this Agreement and thereafter, Distributor shall
not take or cooperate in any action or threatened action which might in any way
impair such industrial property rights, or question Hach's paramount ownership
or interest in the same or in any way injure Hach's business and good will.
11.3 Distributor shall not, without Hach's consent or direction, make any
threat against or cooperate in any action against third parties which in any way
involves the above-mentioned industrial property or which constitutes unfair
trade practices or violation of any law in the sale or in the advertising of
Hach Products.
11.4 Distributor shall not alter, deface, remove, cover up or mutilate in any
manner whatever any trademark, serial or model numbers, brand or name which is
attached to Hach Products. If any such modifications or changes come to
Distributor's attention it shall report them to Hach.
11.5 During the continuance of this Agreement and thereafter Distributor shall
not use or register or attempt to register any name, or insignia which infringes
or is in conflict with or is confusingly similar to Hach's industrial property
rights, and Distributor shall not at any time assert any ownership or interest
in any such name, xxxx or insignia. The foregoing shall include use on products,
in business titles and in advertising literature.
11.6 During the continuance and solely for the purpose of this Agreement,
Distributor is granted the non-exclusive right to use Hach's trade names and
trademarks in connection with the sale or offering for sale and servicing of the
Products, provided, however, that Distributor shall discontinue the display or
use of any such
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trademark or trades name or change the manner in which any such xxxx or name is
displayed or used when requested to do so by Hach. Such marks or names may be
used as part of the name under which Distributor's business is conducted only
with the express approval of Hach. Distributor is not authorized to use outside
the Territory, directly or indirectly, in whole or in part, as a part of
Distributor's corporate name or in signs, advertising, or any other similar
selling effort, any of Hach's trademarks or tradenames that are now or may
hereafter be owned by Hach.
11.7 During the continuance of this Agreement and thereafter neither
Distributor nor its officers or employees will divulge to others, without Hach's
written consent, confidential information supplied directly or indirectly to
Distributor including customer lists and purchase orders, engineering or
technical data including plans, specifications, drawings, designs, layouts,
processes and formulae, whether or not reduced to writing. Distributor shall
disclose confidential information only to those of its officers or employees
whose duties require them to know the same, and then only if such persons have
given to Distributor an enforceable undertaking not to disclose the confidential
information to any unauthorized third person, and Distributor shall take any
such other steps which may be necessary to cause compliance with the provisions
of this Section 11.7 by its officers and employees.
11.8 Distributor shall reimburse Hach for all costs and expenses including
legal fees incurred by Hach in connection with any legal action taken to enforce
compliance with this Section 11.
12.0 Principal-to-Principal Relationship
It is understood and agreed that this Agreement creates a principal-to-principal
relationship between the parties hereto, that Distributor is not an agent, and
that Distributor may not lawfully bind Hach in any manner whatsoever.
Distributor shall not make quotations or write letters in the name of Hach, but
in every instance shall sign with its own name. The name of Hach shall not
appear on the stationery used by Distributor except as a marginal note to
indicate that Distributor is authorized by Hach to distribute Products in the
Territory. In no event shall Hach be liable for any expense incurred by
Distributor, the liability for which is not specifically assumed in writing by
Hach.
13.0 Duration and Termination
13.1 This Agreement shall become effective upon the Contract Date. Unless
sooner terminated as hereinafter provided, this Agreement shall terminate two
years from the Contract Date. This Agreement may be extended beyond its original
term only by the mutual consent of the parties expressed in a written instrument
that refers to this Agreement and specifies the extended term.
13.2 The following events constitute just cause for termination of this
Agreement:
13.2.1 Default by Distributor in the payment of any obligations owing to
Hach; or
13.2.2 The filing by or against Distributor of any insolvency or
bankruptcy proceedings or proceedings for reorganization receivership or
dissolution, or the inability by Distributor to meet its debts as become
due; or
13.2.3 Any material, adverse change in Distributor's financial condition,
or
13.2.4 If Distributor is a corporation, more than fifty percent (50%) of
the stock of Distributor is transferred to another person who does not own
or control at least twenty-five percent (25%) of Distributor's equity at
the time of execution of this Agreement; or
13.2.5 If Distributor is a partnership, any change in the membership of
Distributor's firm by death or otherwise; or
13.2.6 If Distributor is an individual, his death; or
13.2.7 A competitor of Hach acquires, directly or indirectly, control of
at least twenty-five percent (25%) equity interest in Distributor; or
13.2.8 Any dispute, disagreement or controversy arises between or among
any of Distributor's principals, partners, managers, officers or
stockholders which, in Hach's opinion, may adversely affect Distributor's
operation, management, reputation or business or Hach's interest or the
reputation of the Products; or
13.2.9 Any dispute, disagreement or controversy arises between
Distributor and a customer, which in Hach's opinion may adversely affect
Hach's interests or the reputation of Hach's Products; or
13.2.10 Without Hach's written consent, Distributor's place of business
remains closed during regular business hours for more than five (5)
consecutive days, except when the closing is caused by strikes or
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acts of God or when the closing coincides with religious or other holidays
normally recognized in the city where Distributors principal sales and
service are located, or
13.2.11 The assignment or attempted assignment of this Agreement, or of
any interest herein or of any right hereunder, by Distributor without
Hach's written consent; or
13.2.12 Distributors failure to obtain or maintain any license, permit or
authorization from any government within or without the Territory
necessary for the importation, sale or servicing of the Products
thereunder, or necessary to enable Distributor to make payments for the
Products in the United States of America dollars as provided in Section 4
hereof, or otherwise necessary for the performance of Distributor's
obligations hereunder; or
13.2.13 The failure or refusal of Distributor for a period of thirty (30)
days after notice to perform any of its obligations under this Agreement;
or
13.2.14 The enactment of law by any governmental unit within the Territory
which would restrict Hach's right to terminate and/or elect not to renew
this Agreement as herein provided, by making Hach liable to Distributor
for compensation and damages upon termination and/or failure to renew this
Agreement.
13.2.15 The failure of Distributor to approximate the sales levels agreed
to in the Sales Forecast.
13.3 Upon the occurrence of any event specified in subparagraphs 13.2.2, 13.2.4
and 13.2.14 above, this Agreement shall automatically and immediately terminate.
Upon the occurrence of any of the other above specified events, in addition to
the other rights or remedies which Hach may have in law or equity, it may, as
its option, terminate this Agreement by written notice thereof. Such termination
shall become effective as of the date set forth in said notice but in no event
earlier than ninety (90) days after such notice is given. Any waiver of the
right to terminate for any of these events shall not constitute a waiver of the
right to claim damages and/or to terminate this Agreement for any similar events
which may occur in the future.
14.0 Rights and Obligations Upon Termination
Upon termination of this Agreement as provided in Section 13 or otherwise
provided for herein:
14.1 The acceptance of orders from Distributor or the continuance of sale of
Products to Distributor or any other act of Hach after notice of termination of
this Agreement shall not be construed as a renewal or a revival of this
Agreement for any further term or as a waiver of the termination.
14.2 Hach shall have the obligation of canceling any of Distributor's
outstanding orders for Products.
14.3 Hach shall not be liable to Distributor for compensation or damages of any
kind whether on account of loss by Distributor of present or prospective
profits, or anticipated orders, or on account of expenditures, investments or
commitments made in connection with this Agreement, or on account of any other
thing or cause whatsoever.
14.4 Distributor shall remove all signs bearing any of Hach's trademarks or
tradenames, obliterate said trademarks or trade names from letterheads,
stationery, service orders and other forms, and discontinue the use of any
identification or advertising that might convey the impression that Distributor
is still an authorized Hach distributor. Distributor shall immediately return to
Hach all price lists and catalogs, technical specifications, brochures,
advertising matter of any kind and all originals and copies of confidential
information which Hach has supplied to Distributor in accordance with
instructions from Hach.
14.5 Hach shall have the option of repurchasing from Distributor any new
Products held by Distributor in inventory which Hach in its sole discretion
determines to be marketable. Such Products shall be repurchased at the Ex Works
(Factory, Ames, Iowa U.S.A.) price as invoiced by Hach to Distributor for such
Products if Distributor can prove such invoice price: otherwise, such Products
shall be repurchased at seventy-five percent (75%) of Hach's current Ex Works
(Factory, Ames, Iowa U.S.A.) price for such Products. Distributor shall furnish
to Hach a xxxx of sale, or other document of title satisfactory to Hach,
covering all property repurchased under this Section 14.5.
14.6 Termination of this Agreement shall in no way affect Distributor's
obligation to make payments for the Products delivered prior thereto. The
parties may pursue any rights or obligations accrued or existing at the date of
termination.
14.7 Distributor shall, if necessary, take all steps to transfer any
governmental or regulatory approvals for each Product to Hach or Hach's nominee,
or if such transfer is not permitted, to cooperate in the cancellation of
Distributor's governmental approvals and the reissuance thereof to Hach or
Hach's nominee at Hach's expense.
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15.0 Indemnification
15.1 Distributor shall indemnify and hold Hach harmless from and against all
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expenses (including, without limitation, attorney's fees) imposed upon,
incurred by or asserted against Hach that result from:
15.1.1 Acts of negligence or misrepresentations by Distributor, its
employees or agents; Distributor's breach of any provision of this
Agreement including without limitation, Sections 6, 7, 9 and 10); or
Distributor's failure to meet its obligations or to perform any acts
required under its agreements with any third party; and
15.1.2 The relationship between Distributor and any of its employees,
agents, and servants, whether under industrial accident laws, worker's
compensation laws or any other laws applicable to employers and employees.
15.2 The provisions of this Section 15 shall survive the termination of this
Agreement.
16.0 Assignment
This Agreement shall be binding upon and inure to the benefit of Hach's
successors and assigns, but it is personal to Distributor and may not be
assigned or transferred by it without Hach's written consent which Hach may
withhold at its sole discretion whether such discretion is reasonable or
unreasonable.
17.0 Entire Agreement and Miscellaneous Provisions
17.1 This Agreement, entered into by Distributor and Hach of their freewill,
records the entire agreement between the parties and merges all discussions and
replaces any understanding or prior agreement which may heretofore have existed
between Hach and Distributor with regard to Distributor's appointment in the
Territory.
17.2 Any amendments to this Agreement shall be in the form of a written
document signed by all parties to this Agreement. Oral agreements and
representations shall be not be binding.
17.3 No party to this Agreement shall be responsible for noncompliance with the
terms and conditions of this Agreement where the reasons for such noncompliance
are beyond the control of the party.
17.4 Hach's failure to enforce at any time any provision, right or option of
this Agreement, shall in no way be considered a waiver of such provision, right
or option or in any way affect the validity of this Agreement. The exercise by
Hach of its rights or options hereunder shall not preclude it from or prejudice
it in exercising the same or any other rights or options it may have under this
Agreement. All notices provided for herein shall be given in writing by
registered return-receipt air mail, by telegraph or cable confirmed in writing,
by facsimile or other electronic transmission or by courier, addressed to:
Distributor: EuroTech (Far East) Ltd.
Hach: Hach Company
XX Xxx 000
00xx Xxxxxx and Lindbergh Parkway
Xxxxxxxx, Xxxxxxxx 00000 XXX
Attn.: Vice President of Sales and Marketing
with a copy to:
Hach Company
XX Xxx 000
00xx Xxxxxx and Lindbergh Parkway
Xxxxxxxx, Xxxxxxxx 00000 XXX
Attn.: Office of Chief Counsel of Operations.
17.5 Notices sent by facsimile, cable, telegraph or other electronic means
shall be seemed to be given on the day following the transmission. Notices sent
by registered return-receipt air mail shall be deemed to be given seven (7) days
after the date of mailing. Notices sent by courier shall be deemed to have been
given five (5) days after tender and acceptance of the notice by the courier for
purposes of delivery.
18.0 Separability
18.1 Any provision of this Agreement which in any way contravenes the law of
any country or political subdivision in which this Agreement is effective shall,
in such country or political subdivision and to the extent
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of such contravention of law, be deemed separable and shall not affect the
validity of any other provision of this Agreement.
18.2 This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Colorado, U.S.A., without giving effect to its conflict of
law principles. The United Nations Convention on Contracts for the International
Sale of Goods shall not apply to this Agreement.
18.3 Any dispute arising between the parties out of or in connection with this
Agreement shall be finally resolved by arbitration in Denver, Colorado pursuant
to the International Arbitration Rules of the American Arbitration Association.
The arbitration panel shall consist of three arbitrators, one appointed by each
party and a third neutral arbitrator appointed by the other two arbitrators. The
arbitration shall be conducted in English which is the governing language of
this Agreement.
18.4 Nothing in this Article shall prevent Hach from seeking injunctive relief
against Distributor from any judicial or administrative authority pending the
resolution of a controversy or claim by arbitration. Hach also reserves the
right to xxx in any court of competent jurisdiction to collect from Distributor
funds due and owing Hach for Products sold and delivered to Distributor under
this Agreement and Distributor agrees that, in the event of any such suit for
collection by Hach, Distributor shall not be entitled to raise as a defense
thereto any set-off or counterclaim alleged by Distributor; rather, any set-off
or counterclaim alleged by Distributor shall be subject to the arbitration
provision above.
19.0 Commissioned Sales
19.1 Distributor may be entitled to a Sales Commission for sale of Hach Product
when such Product is sold by Hach or Distributor directly to a customer in the
Territory. Payment and allocation of Commission is specifically set forth in
Exhibit C, Commission Schedule. Hach recognizes that extraordinary circumstances
may warrant allocation of a particular sales commission on a basis differing
from that described in the Commission Schedule with approval from Hach prior to
the transaction. In all events, Hach's decision as to the allocation of any
commission shall be final and binding on all parties.
19.2 Commission payment shall be made by Hach in accordance with Distributor's
express, written instructions. At Hach's discretion, such payment may be made in
U.S. dollars or in the currency of the Territory. In no event shall Hach be
liable to Distributor for any commission, a claim for which is reported to Hach
more than six (6) months after the transaction.
19.3 Distributor shall assist Hach in assuring the timely and complete payment
of any invoice with respect to which a commission is owing to Distributor, and
Distributor shall advise all customers that on sales made directly to customers
by Hach, overdue payments shall accrue interest at the rate of one-and-one
half (1 1/2) percent per thirty (30)-day period, with each fraction of a period
counting as a full period.
19.4 Hach shall debit Distributor's account for any commission which is paid to
Distributor with respect to Products which are returned by the customer for
credit or refund and a prorata amount of any commission which is paid with
respect to orders for which Hach, for whatever reason, does not receive payment
in full. No commission shall be owing to Distributor with respect to any sale
for which Hach receives less than sixty percent (60%) of the full invoice price.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year hereinafter written, to become effective when
signed by both parties.
FOR DISTRIBUTOR FOR HACH COMPANY
NAME: X X XXXXX NAME: XXXX X. XXXXXX
------------------------ --------------------------
TITLE: CHAIRMAN TITLE: VP & CFO
------------------------ --------------------------
DATE: 10/3/98 (10 March 98) CONTRACT DATE:
------------------------ ------------------
SIGNATURE: /s/ X X XXXXX SIGNATURE: /s/ XXXX X. XXXXXX
------------------- ---------------------
Exhibits Lists:
Exhibit A Territory
Exhibit B Products
Exhibit C Commission Schedule
DAW 23 February 1998
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EXHIBIT A
TERRITORY
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Hong Kong
Macao
Peoples Republic of China
DAW 23 February 1998
9
[HACH Logo]
EXHIBIT B
PRODUCTS IN THE TERRITORY
1.1 Distributor may only Distribute Products which are covered under this
Agreement. Products covered under this Agreement are denominated as such with a
check xxxx in the YES Column under 2.2 below. Product denominated with a check
xxxx in the NO Column below is not covered under this Agreement and Distributor
is not eligible to distribute those products.
2.2 PRODUCT CLASS COVERED UNDER THIS AGREEMENT
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CHEMICALS (Process Reagents) YES |X| NO |_| EXCEPTED(1)|_|
CHEMICALS (COD Reagents; Lab/Kit YES |X| NO |_| EXCEPTED|_|
Reagents manufactured by Hach)
TEST KITS YES |X| NO |_| EXCEPTED|_|
(Test Kits; Test Kit Replacement Parts)
MICROBIOLOGY YES |X| NO |_| EXCEPTED|_|
(Microbiological Chemicals/Media;
Kits and Apparatus manufactured by Hach)
CHEMISTRY RESALE YES |X| NO |_| EXCEPTED|_|
(Resale Apparatus, Resale Lab Instruments)
OTHER CHEMICALS YES |X| NO |_| EXCEPTED|_|
(Other Chemicals manufactured by Hach)
COLORIMETERS/SPECTROPHOTOMETERS YES |X| NO |_| EXCEPTED|_|
(Pocket Colorimeters; DR-Series Colorimeters,
DR-Series Spectrophotometers; DR-EL Series
Portable Field Laboratories; Special Field Laboratories)
LABORATORY INSTRUMENTS YES |X| NO |_| EXCEPTED|_|
(Amperometric Titrator; TitraStir(R); BOD Apparatus;
IncuTrol(R); COD Reactor; Conductivity Meters;
Digital Titrators; Dissolved Oxygen Meters;
Electrodes, pH Meters; TenSette(R) Pipettes;
Digestion Instruments & Accessories; Hach
Miscellaneous Laboratory Instruments and
Accessories)
TURBIDIMETERS (Laboratory and YES |X| NO |_| EXCEPTED|_|
Portable Turbidimeters)
TURBIDIMETERS (Process Turbidimeters) YES |X| NO |_| EXCEPTED|_|
PROCESS INSTRUMENTS YES |X| NO |_| EXCEPTED|_|
SERVICE PARTS YES |X| NO |_| EXCEPTED|_|
EXCEPTIONAL CONDITIONS (Describe)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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(1) Products annotated as "Excepted" are distributed under this Agreement but
are limited to the distribution arrangement described under the Exceptional
Conditions statement in this Exhibit X.
XXX 23 February 1998
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EXHIBIT C
COMMISSION SCHEDULE
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1.0 Distributor may, at Hach's discretion and with prior approval on each
transaction, be allowed a percentage commission for certain sales.
1.1 Sales for which Distributor may be allowed a commission are indent sales
made at Hach's International market Price for the Territory on orders direct
from the Territory. Distributor orders for Distributor's own account at
Distributor's cost are not commissionable orders under this Agreement.
2.0 Commission is computed according to the following schedule.
2.1 Full Commission is 20% of the International Market Price for the Territory,
Ex Works (Factory, Ames, Iowa).
2.2 Full Commission may be achieved according to the following participation
Schedule:
2.2.1 Credit for Specifying Hach Products: Up to fifty percent (50%)
of full commission may be credited to the account of the Distributor
who participates in securing a written specification or preference for
Hach Product(s) in the Territory. Where more than one Distributor has
secured such specification or preference this fifty percent of full
commission may be allocated among the participants at Hach's
discretion.
2.2.2 Credit for Origination of Order: Up to twenty-five percent
(25%) of Full Commission may be credited to the account of the
Distributor from whose Territory the order issued. Distributors must
substantiate that he or his agent(s) were materially instrumental in
inducing the customer to place the order for which commission is
sought with Hach Company. The following are examples of the types of
inducement which will be considered instrumental and therefore
commissionable: pre-notifying Hach Company of the existence of an
order, specification of the Distributor's name on the customer's
purchase order, or other documentary proof of distributor inducement.
Nothing in this Section 2.2.2 would preclude Distributor from offering
other evidence of its instrumentality in the transaction. Hach may, at
its sole discretion choose to accept or reject such other forms of
proof.
2.2.3 Credit for Destination of Product: Up to twenty-five percent
(25%) of Full Commission may be credited to the account of the
Distributor into whose Territory Hach Product(s) is shipped for
installation or use. No Commission shall be paid unless Distributor
has and will, in Hach's opinion, provide reasonable assistance to the
customer in the Territory before, during or after the transaction.
Such assistance may include but is not limited to on-site inspection
of the Product and a commitment to continued service and support.
2.2.4 Upon receipt of commission payment for Destination Credit,
Distributor must, within 60 days of the date of the commission check,
prepare and submit to Hach a complete description of any and all
Distributor's post-transaction activity related to that commission
payment. Failure to promptly report such post-transaction activity may
result in limitation of Distributor's rights to receive future
Destination Credit.
2.3 All claims for Specification Participation, Order Origination or
Destination Participation must be adequately supported by written documentation
or a report acceptable to Hach which indicates the materiality of Distributor
involvement in the transaction.
2.4. Nothing herein precludes Hach Company and Distributor from agreeing upon a
Commission schedules or program different from that described in this Exhibit B,
so long as such schedule or program is agreed upon in writing and in advance of
any commissionable event.
DAW 23 February 1998
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