MASTER DISTRIBUTORSHIP AGREEMENT
This MASTER DISTRIBUTORSIHP AGREEMENT ("Agreement") is made effective as
of the 1st day of January, 1996, by and between ENVIROMETRICS PRODUCTS COMPANY,
a corporation organized and existing under the laws of South Carolina and having
its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (hereinafter "Company"), and ZELLWEGER ANALYTICS, INC., a
company organized and existing under the laws of Texas, and its subsidiaries and
affiliates, having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (hereinafter "Master Distributor").
WHEREAS, Company develops, manufactures, markets and sells certain of the
Products as defined below, and desires to sell and market the Products in the
Territory, as defined below, exclusively through Master Distributor; and
WHEREAS, Master Distributor desires to market and sell the Products in the
Territory and is or will become knowledgeable of the market for the Products in
the Territory; and
WHEREAS, Company and Master Distributor desire to enter into this Agreement
authorizing Master Distributor to promote, market, and sell Products to
Sub-Distributors and Customers in the Territory;
NOW, THEREFORE, in consideration of the foregoing, the mutual promises set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto, intending to
be legally bound, hereby agree as follows:
1. DEFINITIONS.
1.1 The ACT Monitoring Card System TM. The term "The ACT Monitoring Card
System TM means the system comprised of the ACT Electronic Reader and the
Cards, which system has been developed and is currently being distributed by
Company as part of the Business of Company, as listed and identified in Exhibit
1, attached hereto.
1.2 ACT Electronic Reader. The term " ACT Electronic Reader" means the
device produced by or on behalf of Company to read the Cards, as more fully
described on Exhibit 1, attached hereto.
1.3 Affiliate. The term "Affiliate" means a person, partnership, joint
venture, company, corporation, limited liability company, or the functional or
substantial equivalent of any of the foregoing under the laws of any political
subdivision in the Territory, who or which controls, or is controlled by, or is
under direct or indirect common control with, Master Distributor.
1.4 Business of Company The term "Business of Company" means the research,
design, development, manufacture, sale, distribution and service of air
monitoring and other environmental testing and measuring technologies and
products, including, without limitation, the Products.
1.5 Cards. The term "Cards" means the passive, calorimetric dosimeters
developed by Company and (i) used with the ACT Electronic Reader to perform the
function of quantitatively measuring the presence of hazardous gases, and (ii)
those cards used for qualitative measurement of the presence of hazardous gases,
but which are read visually rather than with a reader, all as listed and
described in Exhibit 1, attached hereto.
1.6 Competing Business. The term "Competing Business" means any person or
entity in the same business or substantially the same business as the Business
of Company.
1.7 Competing Product. The term "Competing Product" means any good that
performs substantially the same function(s) as any of the Cards; provided,
however, no product currently produced by Master Distributor shall be deemed to
be a "Competing Product" for purposes of this Agreement.
1.8 Copyrights. The term "Copyrights" means all original works of
authorship including literary, artistic, pictorial, graphic and other
intellectual works owned or claimed by Company which are registered with the
United States Copyright Office or the copyright office of any nation, state or
political jurisdiction within the Territory, are eligible to be so registered,
or are entitled to protection by and under the copyright laws and treaties of
the United States or under the equivalent laws of the political subdivisions,
nations and/or states within the Territory.
1.9 Customer. The term "Customer" means any end-user of a Product.
1.10 Intellectual Property. The term "Intellectual Property" means the
Copyrights, Marks and Patents, collectively or in combination, as the context
suggests.
1.11 Marketing and Sales Reports. The term "Marketing and Sales Reports"
means the reports to be developed by the Parties and by which Master Distributor
will submit to Company from time to time relating to the promotion, manner of
distribution, locations and recipients of the Products. Without limiting the
foregoing, the Marketing and Sales Reports initially agreed by the Parties
include the Sales Rollout Plan Report, attached hereto as Exhibit 3, and the
Product Tracking Report, attached hereto as Exhibit 4.
1.12 Marks. The term "Marks" means all trade names, word marks, trademarks,
service marks and logos or designs (including any trade dress that is
susceptible to protection under the laws of the United States or any other
political subdivision in the Territory), whether or not registered with the
United States Patent and Trademark Office or trademark office or registry of any
nation, state or political jurisdiction within the Territory, placed upon or
used in connection with the Business of Company or the sale, distribution,
promotion and marketing of the Products or of any other goods or services
provided or distributed by Company from time to time, and includes, without
limitation, "ACT and design," "Air-Chem Technologies" and "The ACT Monitoring
Card System; provided, however, the term "Marks" shall not include the trademark
"MDA Scientific," which is owned by Master Distributor or its Affiliate.
1.13 Parties. The term "Parties" means Envirometrics Product Company and
Zellweger Analytics, Inc.
1.14 Patents. The term "Patents" means all inventions or letters patent
owned or licensed by or on behalf of Company, and which are registered with the
United States Patent and Trademark Office or the patent office or registry in
any political subdivision, nation or state in the Territory or are eligible for
registration and/or other protection under the laws and treaties of the United
States or of any other political subdivision, nation or state in the Territory.
1.15 Products. The term "Products" means and includes only the ACT
Monitoring Card System , the ACT Electronic Reader and the Cards, together
with accessories sold in connection therewith, all as described in Exhibit 1,
attached hereto, together with any enhancements to or upgrades of such Products
as may be developed by Company from time to time during the Initial Term.
1.16 Product and Price List. The term "Product and Price List" means and
includes the list of initial prices for Products, attached hereto as Exhibit 1,
as the same may be amended from time to time during the Term as provided herein.
1.17 Purchase Order. The term "Purchase Order" means Company's standard
Purchase Order that must be used by Master Distributor when ordering Products
hereunder, the form of Purchase Order currently being used by Company being
attached hereto as Exhibit 5.
1.18 Sub-Distributor. The term "Sub-Distributor" means any distributor,
retail dealer, re-seller, or wholesaler of any of the Products (other than
Master Distributor itself), and including Affiliates of Master Distributor, and
with whom Master Distributor contracts or otherwise agrees to distribute, market
or sell some or all of the Products or to whom Master Distributor provides
Products for such distribution.
1.19 Term. The term "Term" means the Initial Term of this Agreement,
together with any Renewal Term (s) as provided herein.
1.20 Territory. The term "Territory" means the world.
2. APPOINTMENT OF MASTER DISTRIBUTOR.
2.1 Grant of Distribution Rights. Company hereby grants to Master
Distributor, and Master Distributor hereby accepts, the exclusive,
non-assignable, non-transferable and non-divisible right to promote and
distribute the Products to Sub-Distributors and Customers, to the extent
provided in this Agreement.
2.2 No Partnership or Agency Relationship. This Agreement does not create,
and shall not be construed as creating, any relationship of association,
partnership, agency, or employment between Company and the Master Distributor or
any Affiliate of either Party, and Master Distributor agrees that it is and will
conduct its business as an independent contractor with respect to Company and
its Affiliates. Master Distributor agrees not to assume, create, or enter into
any obligation, agreement, or commitment on behalf of or for the account of
Company or obligate Company or its Affiliates in any manner. Master Distributor
is not authorized to accept any service of process upon Company or to hold
itself out as the agent of Company for any reason whatsoever.
2.3 Sub-Distributor(s). Master Distributor may appoint Sub-Distributors to
distribute Products in sub-territories of the Territory, at Master Distributor's
sole discretion; provided, however, any Sub-Distributor(s) appointed by Master
Distributor (including, without limitation, Affiliates of Master Distributor)
shall agree in writing to abide, mutatis mutandis, by each and every obligation
of Master Distributor under this Agreement, and Company shall be expressly named
as a third party beneficiary of each such agreement for purposes of enforcing
its interests thereunder. Master Distributor agrees that it shall not appoint or
allow the appointment of any sub-distributors of Sub-Distributors without the
prior written consent of Company. Master Distributor agrees to provide Company
with copies of the written agreements between it and Sub-distributor(s) upon
request by Company.
2.4 No Set-Off, The existence of any claim, demand, action, or cause of
action by Master Distributor, any Sub-Distributor, or any Customer against
Company, or any parent, subsidiary, affiliate, officer, employee, agent or
director of Company, whether predicated upon this Agreement or otherwise, shall
not constitute a defense to the enforcement by Company of any of its rights
hereunder, and the dollar amount thereof may not be set-off against any sums due
from Master Distributor to Company under this Agreement, any rule of law to the
contrary notwithstanding.
3 . OBLIGATIONS OF COMPANY.
3.1 Duties of Company. Company agrees to do the following in connection
with the sale of the Products to Master Distributor and the performance of its
obligations hereunder:
a. Supply of Products. Company agrees to use its best efforts to supply, or
to cause to be supplied, to Master Distributor, at mutually agreed delivery
times and dates which Company will use its best efforts to meet, those Products
duly ordered by Master Distributor pursuant to the Purchase Order attached as
Exhibit 5 to this Agreement, but in no event shall Company be required to modify
any of the Products to meet the requirements of Master Distributor, of any
Sub-Distributor or Customer, or of any political subdivision of the Territory.
b. List of Purchasers. Within ten (10) days of the date of execution of
this Agreement, Company will provide Master Distributor a list of all purchasers
of the Products prior to the date hereof.
c. Technical Support. Company will use its best efforts during the Term of
this Agreement to provide the following technical support in connection with the
sale of the Products hereunder, the details and implementation of which shall be
mutually agreed upon by the parties:
i. Initial and periodic training of Master Distributor and duly appointed
Sub-Distributors;
ii. Technical support literature, including warranty information, if any,
pertaining to the Products shipped;
iii. Toll-free (800) number available in the United States to Master
Distributor, Sub-Distributors and Customers;
iv. Receive, track and follow-up on Product complaints reported to Company
by Master Distributor, Sub-Distributors and Customers on a form to be mutually
agreed upon by Master Distributor and Company, and provide Master Distributor
with reports of such activities within fifteen (15) days of the last day of each
calendar year quarter during the term of this Agreement;
v. In conjunction with and with the assistance and advice of Master
Distributor, present one (1) user seminar per year on the Products in
association with and during the same period of time as the annual American
Industrial Hygiene Conference and Exposition (AIHCE); and
vi. Develop text and language and provide camera-ready artwork for
production by Master Distributor of Technical Bulletins which Master Distributor
shall maintain and update as and when reasonably necessary to reflect
modifications in, usage of, or changes in the specifications, warranties, laws,
or regulations pertaining to the Products.
d. Development of New Cards. Company will use its best efforts to develop
new Cards for detecting the presence of additional chemicals and which can be
used with The ACT Monitoring Card System TM, and, during the Term of this
Agreement, Company agrees to make available for distribution by Master
Distributor, under the terms of this Agreement at prices mutually agreed by the
Parties, any such cards, which shall constitute "Products" for purposes of this
Agreement.
e. Coordination of Product Evaluations. Company will coordinate and monitor
Product evaluations and reporting activities by academia, governmental agencies
and other groups, except for routine evaluations by Customers with regard to
purchasing decisions.
f. European CE ▇▇▇▇ Certification. Company will use its best efforts to
confirm its eligibility to use the CE ▇▇▇▇ certification in the European Union
(ELD for the Products.
3.2 Standard of Performance. Company agrees to use its best efforts to
perform each of its duties and obligations described in this Agreement in a
commercially reasonable manner.
3.3 Survival of Obligations. The duties and obligations set forth in
Section 3.1 shall survive the termination of this Agreement for any reason.
3.4 No Solicitation of Employees. During the term of this Agreement and for
a period of one (1) year following termination, for any reason, of this
Agreement, Company will not, either directly or indirectly, on its own behalf or
on behalf of others, solicit, divert, or hire away, or attempt to solicit,
divert, or hire away any person employed by Master Distributor, whether or not
such person is a full-time or part-time employee of Master Distributor, and
whether or not such employment is pursuant to a written agreement, is for a
determined period, or is at will.
4. WARRANTIES; REPAIRS AND REPLACEMENT
4.1 Product Warranties. Products shall be provided to Master Distributor,
Sub-Distributors and Customers pursuant to the terms of this Agreement only with
the warranties (limited, extended or otherwise), if any, then in use by Company
and customarily provided by Company in connection with the sale of a specific
Product. The current warranties to accompany the Products will be provided to
Master Distributor within ten (10) days following the execution of this
Agreement by both Parties.
4.2 No Additional or Modified Warranties by Master Distributor or
Sub-Distributors. Master Distributor and Sub-Distributors shall give or make no
other or different warranties or representations as to quality, merchantibility,
fitness for a particular use or purpose, or any other features of the Products
other than those contained in the warranty (limited, extended or otherwise), if
any, given by Company and set forth in the literature accompanying and
applicable to specific Products.
4.3 New, Additional, or Amended Warranties by Company. From time to time
during the term of this Agreement, Company may provide to Master Distributor
certain warranty and product labeling materials, disclosure literature, and
directions for the use and availability of such materials and literature as
required by applicable law and Company policy as communicated to Master
Distributor. Master Distributor shall promptly, diligently, strictly and
continuously comply with the instructions for the use and availability of all
such materials and literature and with any instructions and procedures imposed
by law or promulgated by Company regarding the sale, safety, or recall of any of
the Products.
4.4 Disclaimer of Warranties THE WARRANTIES CONTAINED OR DESCRIBED IN THIS
SECTION 4 ARE MADE EXPRESSLY IN LIEU OF ANY AND ALL WARRANTIES EXPRESSED OR
IMPLIED. COMPANY DOES NOT WARRANT THAT THE PRODUCTS ARE OR WILL BE MERCHANTABLE
OR FIT FOR ANY PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY PROVIDED HEREIN. THE
LIABILITY OF COMPANY IS SOLELY LIMITED TO THE REIMBURSEMENT OF THE PURCHASE
PRICE PAID FOR ANY PRODUCTS WHICH DO NOT CONFORM TO THE WARRANTIES HEREUNDER.
4.5 Repair or Replacement of Products. Company will, at its sole option,
repair or replace Products which contain defects appearing or which develop (i)
under proper use of the Product, (ii) within the period of time specified by
Company in the literature accompanying Products or communicated to Master
Distributor at the time the Products have been delivered, and (iii) result
solely from faulty design, materials or workmanship; provided, however, to
remain eligible for such warranty, the allegedly defective Products must be
returned to Company at Master Distributor's expense within thirty (30) days
(sixty (60) days for Products located outside of the United States) of discovery
of the alleged defect(s), but in any event before (30) days (sixty (60) days for
Products located outside of the United States) after the expiration of the
applicable warranty period. Master Distributor will assume charges for freight
both to and from Company on warranty and non-warranty work unless otherwise
agreed by the parties hereto. Prior to the return of any such allegedly
defective Products, Company must assign such Product to be returned a Return
Goods Authorization ("RGA") number, under protocols established by Company and
Master Distributor. Master Distributor shall attach to each Product to be
returned a written explanation of the defect in such Product, along with the
assigned RGA number.
4.6 Limitation of Liability. In no event shall Company, its agents,
affiliates, employees, officers or directors be liable to Master Distributor,
Sub-Distributors, or Customers for any special, consequential or incidental
damages, or for any claim, loss, or damage, whether in contract, tort or
otherwise, arising from or relating to (i) any breach of warranty, (ii) the use,
performance, or failure to function of any of the Products, or (iii) any repair
work performed or replacements made in connection therewith, in excess of the
price paid to Company for such Products. Furthermore, Company shall not be
responsible for any claims, causes of action, or damages resulting from Master
Distributor or a Sub-Distributor giving erroneous, false or misleading technical
or warranty information regarding any Products to any Sub-Distributors or
Customers, or by virtue of any modification or extension of any such warranties.
4.7 Warranties to Master Distributor. The only warranty to be provided to
Master Distributor in connection with the Products is a warranty that the
Products conform to their description on the Purchase Orders submitted by Master
Distributor to Company and to the technical literature submitted by Company to
Master Distributor.
5. OBLIGATIONS OF MASTER DISTRIBUTOR.
5.1 Duties of Master Distributor. During the Term of this Agreement, and in
addition to fulfilling each of its other duties under this Agreement, Master
Distributor agrees and covenants to:
a. Advertising. Advertise and promote the Products in appropriate
commercial media; provided, however, Master Distributor shall consult with
Company and receive prior written approval of Company for all advertising copy
or materials of any sort prior to publication or distribution of the same;
b. Sub-Distributor and Customer Contact. Identify and contact
Sub-Distributors and Customers in person, by telephone, and using direct
mailings, and advise and provide Sub-Distributors and Customers with the
specifications, warranties (if any), use, functionality, and performance
characteristics of the Products in strict accordance with any specifications or
warranties given by Company as provided in this Agreement;
c. Records. Maintain reasonably detailed records and information concerning
all Sub-Distributors and Customers, and provide on the fifteenth (15th) day
after the last day of each calendar year quarter the reports and information on
the Marketing and Sales Reports;
d. Reports. Promptly provide Company with all periodic reports, including
the Sales and Marketing Reports, pursuant to the terms of this Agreement;
e. Translations. Translate, prior to distribution of Products and at its
sole expense, all literature accompanying Products, including any warranties or
specifications offered therein, into the language(s) customarily used or legally
required to be used in the political subdivisions, nations and states in the
Territory to and in which Products will be sold or distributed. In connection
with such obligation, Master Distributor shall bear all liability for, and shall
indemnify Company against, any and all damages, claims, causes of action, or
loss of any kind arising out of, caused by, or related to improper, incomplete,
false, or misleading translations;
f. Investigation of Laws Governing Warranties. Ensure, prior to
distribution of Products and at its sole expense, that (i) the warranties, if
any, offered with the Products carry the same effect and obligations for Company
under, and do not contravene, the laws and regulations of any nation or state in
the Territory in or to which Products will be distributed, (ii) no other
warranties are imposed on or otherwise created with respect to the Products by
the laws and regulations of the nations and states in the Territory in or to
which Products will be distributed, and (iii) provide Company with notice and
the exact nature of any such deficiencies in or additions to the warranties
proposed to be offered with the Products. Master Distributor agrees it shall not
distribute the Products subject to such deficiencies or additional warranties
without the prior written approval of Company;
g. Certification and Labeling. Ensure, prior to distribution of Products
and at its sole expense, that the Products are properly certified and labeled
for distribution according to the laws and regulations of all political
subdivisions or nations in the Territory in which Products will be distributed;
provided, however, that necessary modifications to Products to meet
certification and labeling requirements shall be made only at the expense of
Master Distributor and upon written approval by Company;
h. European CE ▇▇▇▇ Certification. Cooperate with and assist Company in
confirming and/or certifying that the Products meet the CE ▇▇▇▇ certification
requirements for sales of Products in the European Union;
i. Notification of Defects. Notify Company promptly of any known defects or
other technical problems concerning the installation, use, or performance of the
Products pursuant to Section 4, and provide on the fifteenth (I 5th) day of
after the last day of each calendar year quarter the Sales and Marketing Reports
and any other reports developed and mutually agreed upon by the Parties;
j. Notification of Evaluation. Notify Company, prior to any discussion,
sales or other distribution of Products, of any contact with or from academia or
regulatory agencies of any government in the Territory (other than contacts or
sales made to or with either of them solely as a Customer), and obtain the
written consent of Company prior to selling or otherwise providing Products to
any entity which Master Distributor knows or should know intends to publish
material or information which describes or evaluates any of the Products, or
parts thereof;
k. Payment of Amounts Due. Promptly pay when due, all monies owed Company
pursuant to the terms of this Agreement;
l. Intellectual Property Search. Conduct, prior to distribution of Products
and at its sole expense, a diligent search of the patent, trademark, copyright
and all other intellectual property records, whether such rights exist at common
law or by statute, in all nations and states within the Territory to or in which
the Products will be distributed, except for the United States, to determine if
the sale of the Products in those nations or states would infringe any
proprietary rights of third parties therein, and provide a copy of the search
results to Company; and Master Distributor shall not distribute Products in or
to those nations or states without the prior written approval of Company; and
m. Notification of Infringement. Promptly notify Company in writing of any
potential (based on the search described in the preceding paragraph (1)) or
alleged infringement of, or any alleged infringement of the property rights of
another by, the Products in any nation or state in the Territory, giving full
information in regard to such potential and/or alleged infringement and any and
all legal proceedings or claims which may have been or may be brought or made
relating to such alleged infringement; and Master Distributor shall not respond,
contest, settle, or otherwise conduct such proceeding or handle such claims
without prior consultation with and written approval from Company, unless a
response is necessary to avoid compromising the rights of Company in such
proceedings or with regard to such claims.
5.2 Limitations on Activities of Master Distributor. During the Term of
this Agreement, Master Distributor agrees and covenants as follows:
a. No Competition. During the term of this Agreement and for a period of
two (2) years following termination, for any reason, of this Agreement, Master
Distributor shall not, either directly or indirectly, on its own behalf or on
behalf of others, engage in the manufacture, distribution, or service of any
Competing Products, nor shall it assist, engage in, or represent a Competing
Business.
b. No Repackaging. Master Distributor and Sub-Distributors shall not
obfuscate, modify or discard the packaging of, or repackage in any respect, the
Products.
C. No Unauthorized Advertising. Master Distributor and Sub-Distributors
shall not advertise, market, or promote in any manner the Products without prior
consultation with and written approval of Company.
5.3 Standard of Performance. Master Distributor agrees to use its best
efforts to perform each of its duties and obligations described in this
Agreement in a commercially reasonable manner that preserves and protects
Company's business reputation and Intellectual Property rights in the Territory.
5.4 Survival of Obligations. The duties and obligations set forth in this
Section shall survive the termination of this Agreement for whatever reason.
5.5 No Solicitation of Employees. During the term of this Agreement and for
a period of one (1) year following termination, for any reason, of this
Agreement, Master Distributor will not, either directly or indirectly, on its
own behalf or on behalf of others, solicit, divert, or hire away, or attempt to
solicit, divert, or hire away any person employed by Company at any time during
the Term, whether or not such person is a full-time or part-time employee of
Company, and whether or not such employment is pursuant to a written agreement,
is for a determined period, or is at will.
6. PRICE AND PAYMENT.
6.1 Price and Payment. Company agrees to supply the Products to Master
Distributor at the prices specified in the Price List; provided, however,
Company may only modify the prices reflected on the Price List as provided in
Section 6.4, below. Master Distributor agrees to pay Company for Products
ordered hereunder as follows:
a. Quarterly Prepaid Purchase Deposits. Master Distributor shall pay to
Company, in cash or immediately available funds, on the first day of each
calendar quarter during the Term of this Agreement, the full amount of the
Quarterly Prepaid Purchase Deposit for that quarter as specified on the schedule
attached hereto as Exhibit 2 (each a "PPD" and collectively the "PPDs"), which
shall be credited by Company toward purchases of Products by Master Distributor
upon actual shipment(s) of Products. The PPDs for each of the calendar quarters
in 1997 shall be agreed and signed by the Parties on or before December 15,
1996, and both parties covenant and agree to negotiate in good faith the amounts
of such second-year PPDS. The Parties further agree that the PPDs for the year
1997, when agreed and incorporated into a writing signed by the Parties as
provided herein, shall constitute an amendment to Exhibit 2 and a part thereof
for all purposes hereunder.
b. Refunds of Quarterly PPD. Within fifteen (15) days following the end of
each calendar year during the Term, Company shall provide a written report to
Master Distributor of the cost and amount of Product ordered by Master
Distributor hereunder during such calendar year (the "Report Year"). Company
agrees that, if the cost of Products ordered by Master Distributor during the
Report Year is less than the total amount of PPDs paid during the Report Year,
Company will refund to Master Distributor, on or before January 30 of the year
next following the Report Year, the amount of the difference between the PPDs
for such year and the orders for such year, less the full amount of the
applicable PPD for the quarter first following the close of the Report Year. The
Parties agree that, except as expressly provided herein, no amount of any PPD
shall be refunded by Company to Master Distributor.
C. Additional Orders. For orders of Products which, during any calendar
quarter, exceed in value the PPD for such quarter, Master Distributor shall pay
Company pursuant to prices set forth on the then-current Price List for
Products.
Reduction of Obligation to Pay PPDS. The Parties agree that the amount of
the PPD for a quarter shall be automatically reduced by twenty-five percent
(25%) if Company is not certified to use the CE ▇▇▇▇ certification during such
quarter; provided, however, the PPD for the first quarter of 1996 shall not be
so reduced unless Company shall fail to obtain the CE ▇▇▇▇ certification prior
to March 1, 1996; provided, further as to any subsequent calendar quarter, the
PPD for any such quarter shall be paid in full for such quarter, immediately in
arrears, if the CE ▇▇▇▇ certification, although not certified at the beginning
of such quarter, is obtained by the close of the first month of such quarter.
Termination for Late Payment. In the event Master Distributor shall, at any
time, fail to pay when due any PPD or any amounts due to Company under this
Agreement, Company may terminate this Agreement.
6.4 Price Changes. Company shall have the right to change, at any time and
from time to time, the price(s) charged for Products during the Term; provided,
however, Company agrees not to change such prices during the first year this
Agreement is in effect, except to pass on to Master Distributor the actual
increase in the cost to Company for the Products, or for the materials or
sub-components to be included in Products, to be purchased by Master Distributor
(hereinafter, a "Cost Increase"). Company agrees to provide Master Distributor
with ninety (90) days prior written notice of the effective date of any increase
in the prices charged for Products (the "Price Change Notice Period"). In such
case, the purchase price of Products ordered under a Purchase Order and accepted
by Company (as provided herein) prior to the commencement of a Price Change
Notice Period requesting delivery of all or a part of such Products during the
Price Change Notice Period shall be the purchase price in effect prior to the
effective date of such price change for that portion of the Products with a
requested delivery date within the Price Change Notice Period, whether or not
delivered prior to the effective date of the price change, and shall be the
price as changed for any such Products with a requested delivery date after the
Price Change Notice Period.
7. PRODUCT ORDERS and DELIVERY.
7.1 Orders. Master Distributor shall order Products only on Company's
then-current Purchase Order, and no purchase terms other than as contained in
the Purchase Order or in this Agreement shall apply to the sale or purchase of
Products hereunder unless agreed in writing by the Parties.
7.2 Quarterly Orders. Master Distributor shall provide Company, at the time
of payment of the Quarterly PPD, with completed Purchase Orders for Products to
be delivered during that quarter, and the value of such orders (calculated by
multiplying the quantity of Products ordered by their respective price per item
listed on Exhibit 1) shall be credited against the PPD for such quarter upon
delivery to Master Distributor as provided herein. Orders during any quarter
which exceed in value the amount of the PPD applicable to that quarter shall be
paid by Master Distributor- within thirty days from the invoice date for such
Products, and Master Distributor shall not be allowed to credit such additional
purchases against future PPDs unless expressly provided herein or otherwise
agreed by Company in writing.
7.3 Packing and Packaging. The Products shall be packed and shipped by
Company in accordance with Company's standard packaging procedures; provided,
however, the packaging of the Products may bear Master Distributor's name and
design(s) (as provided by Master Distributor to Company in camera-ready form),
so long as the same shall be mutually acceptable to the Parties.
7.4 Acceptance of Orders. All Product Purchase Orders submitted by Master
Distributor shall be subject to acceptance and approval, in writing or by
shipment of the Products ordered, by Company at its principal place of business.
Orders shall not be binding until the earlier of such acceptance or shipment,
but only as to the portion of the Purchase Order actually shipped. Company shall
not be liable for any delays in the delivery of the products to Master
Distributor, Sub-Distributors, or Customers that result from Force Majeure (as
defined hereinbelow).
7.5 Cancellation of Order. Product orders or portions of Product orders may
not be canceled by Master Distributor unless written notice of cancellation is
actually received by Company prior to initiation of the manufacturing process by
Company or shipment of ordered Products to Company by Company's supplier(s).
7.6 Inspection by Master Distributor. The Master Distributor shall be
obligated to inspect all Products upon arrival at the first storage or delivery
point after the same are placed on Master Distributor's carrier at the shipping
point, and Master Distributor shall, within ten (10) days of arrival at such
storage or delivery point, give written notice to Company of any claim for
non-conformity, damages or shortages. If Master Distributor fails to give such
notice or to obtain an extension in writing from Company prior to the expiration
of such ten (10) day period, the Products shall be deemed to be accepted.
Modifications or Substitutions. Company reserves the right at any time to
make changes to the Products whenever Company reasonably believes such changes
will facilitate the performance of the Products or represent non-substantial
substitutions or modifications not adversely affecting such performance.
Taxes and Other Charges. Master Distributor agrees to pay, collect, and
remit on the dates when they are due all value-added, sales, use, property, and
other taxes, duties, and assessments imposed by any governmental agency in the
Territory in respect to the Products, other than income or similar withholding
taxes imposed upon Company by any governmental agency of the Territory, and
Master Distributor agrees to indemnify and hold Company harmless against any
such liabilities, including such fines and costs as may be incurred for the
failure to pay such taxes, duties, and assessments.
7.9 Compliance with Export and Import Laws and Requirements. Master
Distributor agrees to comply fully with all applicable export and import laws,
regulations, and orders of the United States and each other political
subdivision of the Territory and to adopt such policies and procedures as may be
required to comply with such laws, regulations, and orders. Notwithstanding any
other provisions of this Agreement, Master Distributor agrees not to export or
allow trans-shipment or otherwise make the Products available to any third party
within the Territory if Master Distributor knows, or has reasonable grounds to
suspect, that such third party is planning to use or otherwise transfer the
Products in violation of such export laws, regulations, or orders. All of
Company's obligations under this Agreement shall be subject to the grant and
effectiveness of all necessary United States export authorizations and
approvals.
7.10 Shipment and Risk of Loss. All Products to be sold hereunder shall be
sold F.O.B. (as defined in the Uniform Commercial Code, Article 2, as in force
under the laws of the State of South Carolina) Company's docks, and Company's
sole obligation as to such delivery shall be to make such Products available to
a carrier designated by Master Distributor. Risk of loss for Products so
delivered shall pass when they are handled by the said carrier in connection
with such delivery.
7.11 Title to the Products shall not pass to Master Distributor, but shall
be retained by Company, until payment in full for the Products has been received
by Company from Master Distributor.
Delivery. Company shall use its reasonable efforts to accommodate
Master Distributor's requests to deliver the Products on the date(s)
requested by Master Distributor; provided, however, and notwithstanding the
foregoing or any other term of this Agreement or of the Purchase Order,
Company reserves the right to make partial deliveries of Products from time
to time prior to the requested delivery date. Each delivery which Company
shall make of Products in response to accepted Purchase Orders shall be
regarded as a separate contract of sale and no one default in delivery
shall be cause for terminating the relationship of the Parties under the
Agreement.
8. PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY.
8.1 License, Confidentiality and Non-Disclosure Agreement. In order to
protect the proprietary information and intellectual property of Company,
Master Distributor and Company agree to execute the License,
Confidentiality and Non-Disclosure Agreement attached hereto as Exhibit 6
and expressly incorporated herein. The termination of this Agreement for
any reason whatsoever shall not affect, alter or terminate the License,
Confidentiality and Non-Disclosure Agreement other than the License
contained therein whereby Master Distributor may use certain Marks, which
shall automatically terminate along with this Agreement.
9. TERM AND TERMINATION
9.1 Term of Agreement. The initial term of this Agreement shall be for
a period of two (2) years from the effective date of execution of this
Agreement (the "Initial Term"); provided, however, this Agreement shall be
automatically renewed, but only upon terms and conditions to be mutually
negotiated and agreed by the parties, for an additional period of two (2)
years following the expiration of the Initial Term, unless (i) either party
shall give to the other party written notice of its intention to terminate
this Agreement no fewer than thirty (30) days prior to the end of the
Initial Term, 1-5, 1996, this Agreement is earlier terminated as provided
herein.
9.2 Termination by Company. Notwithstanding the provisions of this
Article, Company may terminate this Agreement at any time by providing
Master Distributor not less than fifteen (15) days prior written notice
thereof, and thirty (3 0) days opportunity to cure the same, after the
occurrence of any of the following events:
a. Failure to Pay. Failure to pay any and all amounts due, including
without limitation, any Quarterly PPD;
b. Failure to Report. Failure to promptly prepare and deliver to
Company the reports to be provided pursuant to this Agreement;
c. Insolvency. Master Distributor, or its parent company, is declared
or acknowledges that it is insolvent or is otherwise unable to pay its
debts as they become due; upon the filing of any proceeding by or against
Master Distributor, whether voluntary or involuntary, for bankruptcy,
insolvency, relief from creditors, arrangement, reorganization,
composition, receivership or similar relief under the laws of any
government in the Territory; or upon the appointment of a receiver or
manager in respect to any part of Master Distributor's business;
d. Sale of Business. Master Distributor enters into any agreement
relating to the acquisition of Master Distributor of all or substantially
all of its assets by an unaffiliated third party, or a majority of the
equity interest in Master Distributor is sold or otherwise transferred to a
third party which is not an Affiliate of Master Distributor;
e. Assignment of Master Distributorship. Master Distributor assigns or
transfers this Agreement or any of its rights or obligations hereunder
without Company's prior written consent; or
f. Violation of Material Provision. Master Distributor violates any
other material provision of this Agreement or of the Confidentiality and
Non-Disclosure Agreement.
g. Failure to Agree. The Parties fail to reach agreement as to the
PPDs for the year 1997 on or before December 15, 1996, as provided in
Section 6.l.a, above.
9.3 Termination by Master Distributor. Notwithstanding the provisions of
this Agreement, Master Distributor may terminate this Agreement at any time by
providing Company not less than fifteen (I 5) days prior written notice thereof
and thirty (30) days opportunity to cure the same (and provided that Master
Distributor is not then in breach of this Agreement), after the occurrence of
any of the following events:
a. Failure to Deliver Products. Subject to the other terms and conditions
of this Agreement concerning delivery of Products, if Company fails to deliver
Products ordered by Master Distributor within sixty (60) days of acceptance of
the Purchase Order for the same by Company.
b. If Company is declared or acknowledges in writing that it is insolvent
or I otherwise unable to pay its debts as they become due; upon the filing of
any proceeding, whether voluntary or involuntary, for bankruptcy, insolvency,
relief from creditors, arrangement, reorganization, composition, receivership or
similar relief under federal or state laws; or upon the appointment of a
receiver or manager in respect to any part of its business;
c. Violation of Material Provision. Company violates any material provision
of this Agreement, which is not cured within a reasonable period of time after
written notice from Master Distributor to Company.
d. Failure to Agree The Parties fail to reach agreement as to the PPDs for
the year 1997 on or before December 15, 1996, as provided in Section 6.1.a,
above.
9.4 Actions Following Termination. Upon termination of this Agreement for
any reason, the Parties agree to continue cooperating with each other and to
carry out an orderly termination of their relations, as follows:
a. Master Distributor's Agreement. Master Distributor agrees, not later
than ten (10) days following the effective date of such termination, to
immediately provide Company with all outstanding Sales and Marketing Reports and
payments due hereunder, to immediately cease continued marketing of the
Products, and to return to Company all Products, Proprietary Information,
Intellectual Property, promotional or other materials, and all other information
of Company, proprietary or otherwise, in Master Distributor's possession or
under its or its Affiliates' control; provided, however, any Product not
repurchased by Company hereunder upon termination may be sold by Master
Distributor pursuant to the terms of this Agreement, so long as Company is
provided a reasonable time to determine whether to repurchase such Products.
b. Company's Actions. Company agrees to allow the return of any Products
delivered to Master Distributor and for which Master Distributor has paid
Company, so long as the said Products to be returned represent Products
purchased in excess of the value of the aggregate PPDs paid by Master
Distributor up until the time of termination; and in such event Company agrees
to promptly refund to Master Distributor (less costs of shipping and handling)
the amounts actually paid by Master Distributor to Company for such returned
Products, so long as the same are returned by Master Distributor in their
original packaging, unaltered, unused, and with no fewer than six (6) months
remaining until the date of expiration printed on the Product packaging.
9.5 Refunds and Restocking Charges:
a. Restocking- Charges. Upon termination of this Agreement for any reason,
Master Distributor agrees to pay to Company a restocking charge equal to twenty
percent (20%) of the value of (i) any Product in Company's inventory that is
packaged using Master Distributor's name or Marks, and (ii) any Product returned
by Master Distributor under Section 9.4.b. In connection therewith, the Parties
agree that the restocking charge described above (A) represents a sum reasonably
calculated to cover the cost to Company of repackaging and restocking affected
units of Product for sale by Company, and not a penalty or liquidated damages,
(B) shall be based upon the actual cost to Master Distributor of Products as
determined by the then current Price List, (C) shall be paid immediately upon
calculation by Company and may be deducted by Company from and set off against
any sums due to Master Distributor from Company under this Agreement, and (D)
shall be due to Company in addition to any other sums, if any, due by Master
Distributor to Company at the time such charge is assessed.
b. Refunds of Quarterly PPD Upon Termination. Within fifteen (15) days
following the termination of this Agreement, Company shall provide a written
report to Master Distributor of the cost and amount of Product ordered by Master
Distributor hereunder during the calendar year in which such termination takes
effect (the " Termination Report Year"). Company agrees that, if the cost of
Products ordered by Master Distributor during the Termination Report Year is
less than the total amount of PPDs paid during the Termination Report Year,
Company will refund to Master Distributor, within thirty (30) days thereafter,
the amount of the difference between the PPDs for such year and the orders for
such year, less any applicable Restocking Charges.
9.6 Continuing Obligation. No termination of this Agreement for any reason
whatsoever shall affect the continuing obligations of Master Distributor under
any provisions of this Agreement relating to indemnification of Company for the
proprietary or confidential nature of the information provided to Master
Distributor by Company or under the License, Confidentiality and Non-Disclosure
Agreement. The Parties agree that the provisions of this Paragraph are
reasonable and necessary to protect the interest of Company and Master
Distributor.
9.7 Liability on Termination Company shall not have any liability to Master
Distributor solely by reason of the termination of this Agreement including, but
not limited to, any liability or obligation, statutory or otherwise, to
compensate or reimburse Master Distributor for any indemnity, claims, or damages
whatsoever including, but not limited to, claims relating to lost revenue or
lost profits or reimbursement of any expenditures, investments, leasehold, or
employment obligations, or other continuing commitments incurred by such party
in the performance of its duties or obligations hereunder. Master Distributor
hereby expressly waives all indemnities, compensations, and similar claims, to
which it might otherwise be entitled under applicable law of any nation or state
in the Territory, agrees to indemnify and hold Company, its officers, directors,
agents and employees, harmless from and against all claims of Master
Distributor's officers, employees, agents and Sub-Distributors for compensation,
commissions, severance, social security, or other similar payments, and agrees
to withdraw promptly as the registered distributor of Company from the
commercial registry in each jurisdiction within the Territory and agrees not to
so register thereafter.
10. INDEMNIFICATION
10.1 Indemnification by Master Distributor. Without limiting any other duty
of indemnification contained in this Agreement, Master Distributor agrees to
indemnify and hold harmless Company and its Affiliates, and any of their
officers, employees, directors and agents, from and against any and all damages,
claims, liabilities, costs, and expenses, including attorney's fees, arising out
of (i) any misrepresentations by Master Distributor or Sub-Distributor(s) and
their respective officers, agents or employees, (ii) any violation by Master
Distributor or Sub-Distributor(s) of any of the material provisions of this
Agreement, (iii) any wrongful or intentional act or omissions on the part of
Master Distributor or Sub-Distributor(s) and their respective officers, agents
or employees, or (iv) any action based on the infringement of any patent,
trademark or copyright in any jurisdiction within the Territory.
10.2 Indemnification by Company. Company agrees to indemnify and hold
harmless Master Distributor and its Affiliates, and any of their officers,
agents directors and employees, from and against any and all damages, claims,
liabilities, costs, and expenses with respect to (i) any misrepresentations by
Company or its officers, agents or employees with respect to the Products, (ii)
any violation by Company of any of the material provisions of this Agreement.
GENERAL PROVISIONS.
11.1 Complete Agreement/Incorporation of Exhibits. This Agreement sets
forth the entire understanding between the Parties hereto with respect to the
subject matter hereof. All Exhibits to this Agreement referred to herein are
incorporated by reference. This Agreement merges all previous discussions and
negotiations between the Parties or the named Guarantors of this Agreement and
supersedes and replaces any and every other agreement which may have existed
between Company and Master Distributor, including the Letter of Intent executed
on or about December 12, 1995, the Non-Disclosure and Confidentiality Agreement
executed on or about September 1, 1994, and the Confidentiality Agreement
executed on or about October 11, 1995, by and between Company and Master
Distributor.
11.2 Modification or Amendment. Any modification or amendment of any
provision of this Agreement must be in writing and bear the signatures of the
duly authorized representative of both Parties and both Guarantors, unless any
such modification is expressly permitted to be made by one of the Parties.
11.3 No Implied Waivers. Failure of either Party to exercise any right or
option that is granted herein, or to require the performance by the other Party
hereto of any provision of this Agreement, or the waiver by either party of any
breach of this Agreement, shall not prevent a subsequent exercise or enforcement
of such provision or be deemed a waiver of any subsequent breach of the same or
any other provision of the Agreement.
11.4 Assignability. Master Distributor shall not sell, assign, transfer,
convey, delegate, or encumber its duties and obligations hereunder, or any
rights or interest hereunder, and shall not suffer or permit any voluntary
assignment or transfer or encumbrance thereof, by operation of law or otherwise,
without the prior written consent of Company. Company reserves the right to
assign this Assignment or any of its duties, obligations, rights, or interest
hereunder to any direct or indirect subsidiary or Affiliate of Company.
Notice. All notices, requests, reports, submissions, and other
communications permitted or required to be given under this Agreement shall be
in the English language and shall be deemed to be duly given if such notice or
communication shall be in writing and received by the Parties at the following
addresses until such time as either Party hereto shall given the other party
written notice of a change of address in accordance with the provisions hereof.
If to Company:
Envirometrics Products Company
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, President
10 1 ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 803-740-1721
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
Ten State Street, LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to Master Distributor:
Zellweger Analytics, Inc.
Attn.: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇, President ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile:
Conformity With Local Laws. The rights and obligations of the Parties
hereunder are subject to all applicable laws, orders, and regulations of the
various governmental authorities having jurisdiction over the Parties. In the
event that any of the foregoing shall result in a modification or alteration of
this Agreement, either Party hereto may request that this Agreement be modified
with respect thereto, to the mutual satisfaction of the Parties hereto, or
either party may, in its sole discretion, terminate this Agreement.
Compliance with Foreign Corrupt Practices Act and Boycott Laws Master
Distributor agrees to comply fully with all applicable laws, regulations, and
orders promulgated by the United States pursuant to the Foreign Corrupt
Practices Act, any United States Boycott Laws, and the United States
Anti-Boycott Laws, as the same may be amended from time to time, and to adopt
such policies and procedures as may be required to comply with such laws,
regulations, and orders. Notwithstanding any other provisions of this Agreement,
Master Distributor agrees not to export or otherwise make the Products available
to any third party if Master Distributor knows, or has reasonable grounds to
suspect, that such third party has conducted, is conducting, or will conduct its
business in the Territory in violation of the laws, regulations, or orders
promulgated by the United States pursuant to the Foreign Corrupt Practices Act
or other applicable United States laws.
Governing Law: Jurisdiction and Venue. This agreement shall be governed and
construed in accordance with the laws of the State of South Carolina and of the
United States, including any applicable treaties or conventions to which the
United States is a party, but excepting any South Carolina or United States rule
which would result in the application of the law of a jurisdiction other than
the State of South Carolina; provided, however, that any and all disputes under
this Agreement are expressly submitted to arbitration as described in paragraph
II. II below in reliance on 9 U.S.C. Sections 1-14, as amended from time to
time, and in reliance on enforcement of any arbitral award pursuant to the
Convention on Recognition and Enforcement of Foreign Arbitration Awards of June
10, 1958, as codified at 9 U.S.C. Sections 201-208.
Arbitration
a. Location Rules: Binding Decision. Without limiting the application of
any dispute settlement provisions contained in the Exhibits hereto, the Parties
agree that all disputes, controversies or differences which may arise between
the parties out of or in relation to or in connection with this Agreement shall
be finally settled by arbitration to be held in Atlanta, Georgia, United States,
in accordance with the Rules of the American Arbitration Association, New York,
New York, United States, before a single arbitrator appointed by the Parties
from among the members of the National Panel of Arbitrators of the American
Arbitration Association. If the Parties are unable to agree on an arbitrator
within thirty (30) days following receipt of a notice to submit to arbitration
sent as provided in this Agreement, the Parties expressly agree that such
arbitrator shall be chosen by the Chief Judge of the U.S. Federal District Court
for the Northern District of Georgia, Atlanta Division. To the extent not
inconsistent with the Rules of the American Arbitration Association, the United
States federal rules of civil procedure shall apply to such proceedings. The
determinations of such arbitrator will be final and binding upon the parties to
this Agreement, and judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction and application may be made to such
court for a judicial acceptance of the award and an order of enforcement, as the
case may be. Each Party shall bear its own costs of the arbitration and shall
equally bear the costs of the arbitrator.
b. Stipulation of Submission. The parties hereto stipulate that submission
of disputes to arbitration as provided in sub-paragraph 11.11(a) hereof and
arbitration pursuant thereto shall be a condition precedent to any suit, action,
or proceeding instituted in any court or before any administrative tribunal with
respect to this Agreement. The arbitration provisions hereof shall, with respect
to any controversy or dispute arising out of this Agreement, survive the
termination or expiration of this Agreement.
11.10 Force Majeure. The Parties hereto shall be not be liable for any
failure to perform any of their duties and obligations under this Agreement if
such failure is caused by the occurrence of any event beyond the reasonable
control of such party, including, without limitation, fire, flood, strikes and
other industrial disputes, failure of raw material suppliers or equipment
manufacturers, accidents, wars, riots, insurrections, acts of God, or orders of
any government department or agency; provided, however, performance by the
affected Party shall only be suspended (a) for such time as the unforeseen event
prevents performance of the party's duties and obligations hereunder and, upon
cessation of the unforeseen event, the party shall immediately resume
performance under this Agreement, or (b) for six (6) months from the
commencement of the unforeseen event after which this Agreement shall be
terminated and the Parties shall have the obligations set forth in Article 9.
11.11 Severability. If any provision of this Agreement is determined to be
in violation of any applicable law or otherwise invalid or un-enforceable, such
provision shall, to such extent as it shall be determined to be legal, invalid,
or un-enforceable under such law, be deemed null and void, but this Agreement
shall otherwise remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
written above.
MASTER DISTRIBUTOR: ZELLWEGER
ANALYTICS, INC.
By:
Its:
ATTEST:
Corporate Secretary
COMPANY: ENVIROMETRICS PRODUCTS COMPANY
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, President
ATTEST:
Corporate Secretary
Exhibit I
Air Chem Technologies (ACTTM)
Product and Price List
Units Per Suggested Master Distributor Master Distributor
Product Catalog Type Package User List Price Discount % Cost
------- ------- ---- ------- --------------- ---------- ----
Formaldehyde 403202100 Qualitative PEL 8hr 20 180.00/box 25/25 101.25
403202101 Quantitative PEL 8hr 10 300.00/box 25/25 168.75
403202102 Quantitative STEL 15min 10 300.00/box 25/25 168.75
403202105 Qualitative PEL 8 hr 5 80.00/box 25/25 45.00
Hydrogen Sulfide 403202200 Qualitative STEL 15 min 20 180.00/box 25/25 101.25
403202201 Quantitative PEL 8hr 10 300.00/box 25/25 168.75
403202202 Quantitative STEL 15 min 10 300.00/box 25/25 168.75
403202205 Qualitative PEL 8hr 5 80.00/box 25/25 45.00
Glutaraldehyde 403202300 Qualitative PEL 8hr 20 180.00/box 25/25 101.25
403202305 Qualitative PEL 8 hr 5 80.00/box 25/25 45.00
Ammonia 403202400 Qualitative STEL 15 min 20 180.00/box 25/25 101.25
403202402 Quantitative STEL 15 min 10 300.00/box 25/25 168.75
403202405 Qualitative STEL 15 min 5 80.00/box 25/25 45.00
Carbon Monoxide 403202500 Qualitative Ceiling 15 min 20 180.00/box 25/25 101.25
403202501 Quantitative PEL 8 hr 10 300.00/box 25/25 168.75
403202502 Quantitative Ceiling 15 min 10 300.00/box 25/25 168.75
403202505 Qualitative Ceiling 15 min 5 80.00/box 25/25 45.00
Ethylene Oxide 403202601 Quantitative PEL 8 hr 10 300.00/box 25/25 168.75
403202602 Quantitative Ceiling 15 min 10 300.00/box 25/25 168.75
Chlorine 403202700 Qualitative STEL 15 min 20 180.00/box 25/25 101.25
403202701 Quantitative PEL 8 hr 10 300.00/box 25/25 168.75
403202702 Quantitative STEL 15 min 10 300.00/box 25/25 168.75
403202704 Qualitative PEL 8 hr 20 180.00/box 25/25 101.25
403202705 Qualitative STEL 15 min 5 80.00/box 25/25 45.00
403202706 Qualitative PEL 8 hr 5 80.00/box 25/25 45.00
Sulfur Dioxide 403202900 Qualitative STEL 15 min 20 180.00/box 25/25 101.25
403202901 Quantitative PEL 8 hr 10 300.00/box 25/25 168.75
403202902 Quantitative STEL 15 min 10 300.00/box 25/25 168.75
403202904 Qualitative PEL 8 hr 20 180.00/box 25/25 101.25
403202905 Qualitative STEL 15 min 5 80.00/box 25/25 45.00
403202906 Qualitative PEL 8 hr 5 80.00/box 25/25 45.00
Nitrogen Dioxide 403203100 Qualitative STEL 15 min 20 180.00/box 25/25 101.25
403203101 Quantitative PEL 8 hr 10 300.00/box 25/25 168.75
403203102 Quantitative STEL 15 min 10 300.00/box 25/25 168.75
403203105 Qualitative STEL 15 min 5 80.00/box 25/25 45.00
Methyl Ethyl Keton403203201 Quantitative PEL 8 hr 10 300.00/box 25/25 168.75
ACT Electronic 403215000 Includes charger, software 12000.00ea 25/25 1125.00
Reader and Data Cables
ACT Field Case 401910303 1 200.00 ea 25/25 125.50
ACT Starter Kit 403201600 Includes 50 record sheets, 1 20.00ea 25/25 11.25
5 collar clips, 1 permanent marker
ACT Collar Clips 403204001 5 5.00/pack 25/25 2.81
EXHIBIT 2
1996 Quarterly Prepaid Purchase Deposits
1996 QUARTER QUARTERLY DEPOSIT
1 $101,250.00
2 $135,000.00
3 $202,500.00
4 $236,250.00
EXHIBIT 3
SALES ACTIVITY
U.S. SALES BY TERRITORY
AND
INTERNATIONAL SALES BY COUNTRY
SALES REPS/COUNTRY PRESENTATIONS DEMOS EVALUATIONS SALES
EXHIBIT 3
PRODUCT TRACKING
U.S. & INTERNATIONAL SALES
SALES REPS/COUNTRY PRESENTATIONS DEMOS EVALUATIONS SALES
STATE OF SOUTH CAROLINA
COUNTY OF CHARLESTON
LICENSE, CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS AGREEMENT (the "Agreement') is effective as of the 1st' of January,
1996, by and between ENVIROMETRICS PRODUCTS COMPANY, a corporation organized and
existing under the laws of South Carolina and having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (hereinafter
the "Company"), and ZELLWEGER ANALYTICS, INC., a company organized and existing
under the laws of Texas, and its subsidiaries and affiliates, having its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ (hereinafter the "Master Distributor").
WHEREAS, the Company is engaged in the Business of the Company throughout
the United States and, in the course of such activities, has acquired or
developed certain Trade Secrets, Confidential Information and Proprietary
Information (as such terms are hereinafter defined) not generally known in the
Company's industry or otherwise;
WHEREAS, such Trade Secrets, Confidential Information and Proprietary
Information provide the Company with a competitive advantage in the marketplace
in which it competes;
WHEREAS, the Company and Master Distributor have entered into a Master
Distributorship Agreement, dated as of the date hereof, pursuant to which Master
Distributor will promote, market, and sell Products to Sub-Distributors and
Customers in the Territory, as is more particularly defined in the Master
Distributorship Agreement
WHEREAS, as a result of the execution of the Master Distributorship
Agreement, Master Distributor is in a position involving the trust and
confidence of the Company and will receive access to the Companys Trade Secrets,
Confidential Information and Proprietary Information, and, through the use of
Company facilities or resources, may develop, or contribute to the development
of, additional Trade Secrets, Confidential Information and Proprietary
Information; and
WHEREAS, the Company and Master Distributor are entering into this
Agreement in order to protect the Company's Trade Secrets, Confidential
Information and Proprietary Information.
NOW THEREFORE, in consideration of the execution of the Master
Distributorship Agreement, the mutual agreements contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Definitions.
(a) The ACT Monitoring Card System TM. The term "The ACT Monitoring
Card System TM means the system composed of the ACT Electronic Reader and
the Cards, which system has been developed and is currently being
distributed by the Company as part of the Business of Company.
(b) ACT Electronic Reader. The term "ACT Electronic Reader" means the
device produced by or on behalf of the Company to read the Cards.
(c) Business of Company. The term "Business of Company" means the
research, design, development, manufacture, sale and service of air
monitoring and other environmental testing technologies and products,
including the Products.
(d) Cards. The term "Cards" means the cards developed by the Company
and used by the ACT Electronic Reader to perform the function of
quantitatively measuring elements present in the atmosphere, and the cards
used for qualitative measurement which are read visually.
(e) Competing Business. 'Me term "Competing Business" means any person
or entity in the same business or substantially the same business as the
Business of Company.
(f) Competing Product. The term "Competing Product" means any good
that performs substantially the same functions as either of the Cards.
(g) Confidential Information. The term "Confidential Information'
means any and all data and information relating to the business conducted
by the Company (whether constituting a Trade Secret or not) which is or has
been disclosed to Master Distributor or of which Master Distributor became
aware as a consequence of or through his relationship with Company and
which has value to the Company and is not generally known by its
competitors; provided, however, no information will be deemed
"confidential" unless such information is treated by the Company as
confidential. Confidential Information shall not include any data or
information that has been voluntarily disclosed to the public by the
Company (except where such public disclosure has been made by Master
Distributor or any other person or entity without authorization), or that
has been independently developed and disclosed by others (except where such
independent development and disclosure has been made by Master Distributor
or any other person or entity without authorization), or that otherwise
enters the public domain through lawful means.
(h) Copyrights. The term "Copyrights" means all original works of
authorship including literary, artistic, pictorial, graphic and other
intellectual works owned or claimed by the Company which are registered
with the United States Copyright Office or the copyright office of any
nation, state or political jurisdiction within the Territory, are eligible
to be so registered, or are entitled to protection by and under the laws
and treaties of the United States or the substantial equivalent laws of any
political subdivision, nation and/or state within the Territory.
i) Customer. The term "Customer" means any end-user of a Product
"Intellectual Property". The term "Intellectual Property" means the
Copyrights, Marks and Patents, collectively or in combination, as the
context suggests.
(k) Marks. The term "Marks" means all trade names, word marks,
trademarks, service marks and logos or designs (including any @e dress that
is susceptible to protection under the laws of the United States or any
other political subdivision in the Territory), whether or not registered
with the United States Patent and Trademark Office or trademark office or
registry of any nation, state or political jurisdiction within the
Territory, placed upon or used in connection with the Business of Company
or the sale, distribution, promotion and marketing of the Products or any
other goods or services provided or distributed by Company, including,
without limitation, "ACT and design," "Air-Chem Technologies W" and "The
ACT Monitoring Card System TM", together with any and all other marks that
may be developed for use or are used in connection with the marketing or
distribution of the Products or any other goods or services provided or
distributed by Company; provided, however, the term "Marks" shall not
include the trademarks and, which are owned by Master Distributor.
(1) Master Distributorship Agreement The term "Master Distributorship
Agreement" means that certain Agreement by and between Company and Master
Distributor dated as of the 1st day of January, 1996.
(m) Patents. The term "Patents" means all inventions or letters patent
owned or obtained by or on behalf of Company, and which are registered with
the United States Patent and Trademark Office or the patent office or
registry in any political subdivision, nation or state in the Territory or
are eligible for registration and/or other protection under the laws and
treaties of the United States or of any other political subdivision, nation
or state in the Territory.
(n) Products. The term "Products" means and includes the Products to
be distributed by the Master Distributor under the Master Distributorship
Agreement.
(o) Proprietary Information. The term "Proprietary Information"
means all of the following materials and information, whether or not
patentable or protected or protectable, by copyright or equivalent design,
registration law or regulation existing from time to time with any part of
the Territory, to which Master Distributor has received access or which
Master Distributor receives, develops, or has developed, in whole or in
part, as a direct or indirect result of performing this Agreement or
through the use of any of Company's facilities or resources:
(i) Production processes, quality control processes and/or
procedures, marketing techniques, purchasing information, pricing
policies, quoting procedures, financial information, customer names
and requirements, customer data and other materials or information
relating to the manner in which Company does business;
(ii) Discoveries, concepts and ideas, and the embodiment thereof,
whether or not patentable or subject to protection by a copyright, I
including, without limitation, the nature and results of research and
development activities, processes, formulas, techniques and
"know-how";
(iii) Any other materials or information related to the business
or activities of Company which are not generally known to others
engaged in similar business or activities;
(iv) Trade Secrets, Confidential Information or other proprietary
information which Company has acquired or may in the future acquire
from any third party, including, without limitation, operating
principles, documentation, drawings, programs and performance
specifications and results, provided to Company by such third parties
pursuant to agreements, understandings and/or acknowledgments to the
effect that such trade secrets and confidential or proprietary
information provided to Company by such third parties (collectively
"Third Party Confidential Information") is the proprietary and/or
confidential information of such respective third party and is to be
treated by Company as if such Third Party Confidential Information
were Company's Confidential Information.
(p) Territory. The term "Territory" means the world.
(q) Trade Secrets. The term "Trade Secrets" means the whole or any portion
or phase of any data or information developed, owned, or licensed from a third
party by the Company, including any formula, pattern, compilation, program,
device, method, technique, improvement, or process that:
(i) derives independent economic value, actual or potential, from not
being generally known to, and not being readily ascertainable through
proper means by, other persons who can obtain economic value from its
disclosure or use, and
(ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Trade Secrets shall not include any data or information (i) that has
been voluntarily disclosed to the public by Company or has become generally
known to the public (except when such public disclosure has been made by or
through Master Distributor, or by a third person or entity with the
knowledge of Master Distributor, without authorization from Company); (ii)
that has been independently developed and disclosed by parties other than
Master Distributor or Company, the public generally or to Master
Distributor without a breach of obligation of confidentiality by any such
parties running directly or indirectly to Company; or (iii) that otherwise
enters the public domain through lawful means.
2. Term. The term of this Agreement shall commence on the 1st day of January,
1996, and shall end on the termination of the Master Distribution Agreement,
except where a different date of termination or survival is herein specified.
3. Exclusive-Ownership by Company. Master Distributor agrees and acknowledges
that all Proprietary Information, Intellectual Property, Trade Secrets and
Confidential Information, and any and all embodiments thereof (herein, the
"Property"), is and shall remain at all times the exclusive property of and
owned by the Company, and that Master Distributor's performance of its duties
and obligations and its use or awareness of the Property during the term of this
Agreement or the Master Distributorship Agreement shall create no rights, at law
or in equity, under the laws and decisions of any nation or state within the
Territory, in Master Distributor in or to the Property, or any aspect or
embodiment thereof. Master Distributor further agrees not to copy, reverse
engineer, disassemble, decompile or otherwise reproduce any Product or its
equivalent, in whole or in part.
4. Non-Disclosure of Trade Secrets. Master Distributor shall not, during the
term of this Agreement and the Master Distributorship Agreement, and at any and
all times following termination, for any reason, of this Agreement or the Master
Distributorship Agreement, disclose, use, reveal, report, publish, disclose,
transfer, or make available, directly or indirectly, to any person, business
concern, or other entity, any Trade Secrets except in the proper performance of
its duties hereunder; provided, however, Master Distributor is not prohibited
hereby from disclosing or using any Trade Secrets which subsequently becomes
part of the public domain through no breach of this Agreement or the Master
Distributorship Agreement and through no fault of Master Distributor.
5. Non-Disclosure of Confidential Information or Proprietary Information. Master
Distributor shall not, during the term of this Agreement and the Master
Distributorship Agreement, and for a period of three (3) years following
termination, for any reason, of the Master Distributorship Agreement, disclose,
use, reveal, report, publish, disclose, transfer, or make available, directly or
indirectly, to any person, business concern, or other entity, any Confidential
Information or Proprietary Information except in the proper performance of its
duties hereunder; provided, however, Master Distributor is not prohibited hereby
from disclosing or using any Confidential Information or Proprietary Information
which subsequently becomes part of the public domain through no breach of this
Agreement and the Master Distributorship Agreement and through no fault of
Master Distributor.
6. Confidentiality Procedures. Master Distributor shall take all appropriate
steps to ensure that the Confidential Information and Trade Secrets and any
other similar information and data set forth in this Agreement and the Master
Distributorship Agreement are not divulged or disclosed to any unauthorized
person.
7. License and Use of Marks. Company hereby grants to Master Distributor, during
the term of this Agreement only, the non-exclusive, royalty-free limited right
and license to use the Marks only in connection with the performance of Master
Distributor's duties and obligations under this Agreement and under the Master
Distributorship Agreement. Master Distributor agrees not to use the Marks in
connection with any other business, products or services. Master Distributor
agrees not to use the Marks, or any of them, or any confusingly similar name or
symbol, in whole or in part, as part of Master Distributor's business or trade
name. The Parties shall mutually approve all promotional material used by Master
Distributor in connection with the distribution and marketing of the Products to
ensure that Master Distributor properly uses the Marks.
8. Protection Against Infringement. Master Distributor agrees to cooperate fully
with Company to protect company's proprietary rights in the Intellectual
Property, yet acknowledges and agrees that Company shall have the sole right,
opportunity and duty to protect the Intellectual Property from legal action or
suit for infringement thereof, and Master Distributor shall not respond,
contest, settle, or otherwise conduct any proceedings or handle any claims
without prior consultation with and written approval from Company, unless a
response is necessary to avoid compromising the rights of Company in such
proceedings or with regard to such claims.
9. No Registration without Notice. Master Distributor agrees it will not,
without the prior written consent of Company, directly or indirectly register,
apply for registration, or attempt to acquire any legal protection for any of
the Intellectual Property or the Products or any proprietary rights therein, or
take any other action which may adversely affect Company's right, title, or
interest in or to the Intellectual Property or the Products in any nation or
state within the Territory.
10. No Challenges. Master Distributor shall not challenge, directly or
indirectly, the right, title, and interest of Company in and to the Proprietary
Information, Intellectual Property and Products, nor the validity or
enforceability of Company's claimed rights therein under the laws of any nation
or state within the Territory.
11. No Warranty of Intellectual Prop. Company expressly disclaims and makes no
warranty, promise or representation that the Intellectual Property does not
infringe upon the proprietary rights of third parties under the laws of the
nations and states in the Territory.
12. Termination upon Breach. Master Distributor acknowledges that in the event
of a breach by Master Distributor of its obligations under this Agreement or the
Master Distributorship Agreement, Company may immediately terminate this
Agreement and the Master Distribution Agreement without liability and may bring
appropriate legal action to enjoin any breach of this Agreement, and shall be
entitled to recover from Master Distributor legal fees and costs in addition to
other appropriate legal and equitable relief in any nation or state within the
Territory.
13. No Recourse for Loss Caused by Intellectual Property. Master Distributor
shall have no recourse against Company for any loss, liability, damages or costs
which may at any time be suffered or incurred by Master Distributor by reason
of, or in reliance upon, any of the Intellectual Property furnished hereunder by
Company, or by reason of any suit or proceeding against Master Distributor on
account of any Intellectual Property, or by reason of the defense of any such
suit or proceeding, unless such loss, liability, damages or costs are caused by
gross negligence or fraud of Company.
14. Covenants/Severability. Master Distributor recognizes and agrees: (i) that
the covenants and agreements contained in Sections 2, 3, 4, 5, 6, 7, 8, 9, 10,
11, 12 and 13 of this Agreement are of the essence of this Agreement; (ii) that
each of such covenants is reasonable and necessary to protect and preserve the
interests and properties of the Company and the Business of Company; (iii) that
irreparable loss and damage will be suffered by Company should Master
Distributor breach any of such covenants and agreements; (iv) that each of such
covenants and agreements is separate, distinct and severable from the other and
remaining provisions of this Agreement; (v) that, if any such covenant is found
by a court of competent jurisdiction to be over broad in any respect, Master
Distributor desires and directs that such covenant be amended by such court to a
reasonable breadth; (vi) that, in addition to other remedies available to it,
Company shall be entitled to both temporary and permanent injunctions to prevent
a breach or contemplated breach by Master Distributor of any of such covenants
or agreements; (vii) that the prevailing party s ' hall be reimbursed for any
costs or expenses (including reasonable attorneys' fees) in attempting to
enforce or defend against any such covenants; and (viii) in the event Company
seeks a temporary or preliminary injunction hereunder, Master Distributor hereby
waives any requirement that Company post a bond or other security.
15, Binding Effect. This Agreement shall ensure to the benefit of, and shall be
binding upon, the parties hereto and their respective heirs, successors,
assigns, and legal representatives.
16. Governing Law, Forum for Litigation. This Agreement shall be interpreted and
governed by the laws of the State of South Carolina, without giving effect to
its conflicts of laws rules. Notwithstanding alternative dispute settlement
provisions in the Master Distributorship Agreement, any action or proceeding to
enforce or interpret this Agreement shall be brought only in the state or
federal courts sitting in Charleston County, South Carolina, United States, and
Master Distributor hereby irrevocably submits and consents to such exclusive
jurisdiction and venue.
17. Severability. The provisions of this Agreement shall be deemed severable and
the invalidity or the unenforceability of any one or more of the provisions
hereof shall not affect the validity or enforceability of the other provisions
hereof.
18. Entire Agreement. This Agreement is executed in connection with the Master
Distributorship Agreement, but, with respect to the subject matter hereof, sets
forth the entire understanding between the parties hereto and supersedes and
replaces any and every other agreement with respect to the subject matter hereof
which may have existed between Company and Master Distributor, including,
without limitation, the Non-Disclosure and Confidentiality Agreement executed on
or about September 1, 1994, and the Confidentiality Agreement executed on or
about October 11, 1995.
19. Amendments and Waivers. This Agreement may not be modified or amended except
by an instrument or instruments in writing signed by the party against whom
enforcement of any such modification or amendment is sought. Either party hereto
may by an instrument in writing waive compliance by the other party of any term
or provision of this Agreement on the part of such other party. The waiver by
any party of a breach of any term or provision shall not be construed as a
waiver of any subsequent breach.
20. Section Headings. The section headings contained in this Agreement are for
reference purposes only and shall not be deemed to control or affect the meaning
or construction of any provision.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
written above.
MASTER DISTRIBUTOR: ZELLWEGER
ANALYTICS INC.
By:
ATTEST:
Corporate Secretary
COMPANY-. ENVIROMETRICS PRODUCTS
COMPANY
By
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, President
ATTEST:
Corporate Secretary