DISTRIBUTORSHIP AGREEMENT
THIS DISTRIBUTORSHIP AGREEMENT ("Agreement") is made and entered into
as of this 15th Day of this December, 1997 by and between PURE TECHNOLOGIES INC,
OF CALGARY, ALBERTA ("Company"), and FUGRO GEOTECHNICAL SERVICES (HK) LIMITED
("Distributor").
In consideration of the mutual covenants and undertakings hereinafter
set forth, the parties agree as follows:
1. Appointment.
The Company hereby appoints the Distributor as its exclusive sales
representative in the Territory, as defined in Section 2 of this Agreement and
the Distributor hereby accepts such appointment to sell the products and
licenses of the Company (the "Products") in accordance with the terms and
conditions of this Agreement. The use of the term sales of Products or similar
terms in this Agreement shall refer to sales of products and sale of licenses to
use the data acquisition software associated with the use of the products.
2. Territory.
The Distributor shall have the exclusive right to sell the products in
the geographic area described as follows: Hong Kong, Macau and China
("Territory"). The Territory may be modified from time to time by the prior
written agreement of the parties.
3. Term.
The term of this Agreement shall commence on the date first above
written, and, unless terminated earlier as provided in Section 14, shall
continue for one (1) year terminating upon the first anniversary of such date,
provided that the Agreement shall thereafter be renewed without action by either
party for successive periods of one (1) year each, subject to the termination
provisions of Section 13, unless either party gives written notice objecting to
such renewal at least sixty (60) days prior to the expiration of the then
current one-year term.
4. Covenants and Undertakings of Distributor.
The Distributor covenants and agrees as follows:
4.1 To use its best efforts, and to spend as much time and as much of its
resources as may reasonably be required, to promote sales of the Products. The
Distributor further agrees that it will refrain from soliciting sales or
otherwise promoting sales of the Products outside the territory. These
obligations include, without limitation, the following:
(a) Registration and Licensure. The Distributor agrees to use its
best efforts to promptly obtain from the proper authorities in
the Territory at its own cost and expense, all registrations,
licenses, and approvals required for the import sales, and
distribution by the Distributor of the Products in the
Territory.
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(b) Specific Promotion Efforts. The Distributor shall, at its
expense, distribute sales literature describing the Products,
which the Company shall provide, promote the sale of the
Products through trade publications, and exhibit the Products
at exhibitions at which products of the same or similar nature
are exhibited. All advertising or promotional materials, if
any, utilized by the Distributor, its agents, or employees in
conjunction with the sale of the Products, other than such
sales literature as is furnished to the Distributor by the
Company, shall be approved in writing by the Company prior to
its use or dissemination.
(c) Follow-up on Leads. All leads furnished to the Distributor by
the Company shall be contacted within a reasonable time and a
report of the results of such contacts shall be submitted
promptly to the Company. All leads obtained by the Distributor
for sales of Products outside the Territory shall be forwarded
to the Company.
(d) Visits by the Company. The Company shall have the right upon
reasonable notice to visit and observe the Distributor's place
of business and to accompany the Distributor during sales or
servicing calls or training sessions with customers.
Additionally, the Distributor agrees that the Company may, at
any time during reasonable business hours, review and inspect
the service facilities for the Products.
(e) Customer Complaints. The Distributor and the Company each
agree to cooperate fully in dealing with customer complaints
concerning the Products and to take such action to resolve
such complaints as may be requested by the Company. In this
regard, the Distributor and the Company each agree promptly to
furnish the other with any information that may be required by
the other to comply with any governmental laws or regulations
or that may be required to minimize the potential impact of a
recall of any of the Products.
(f) Traceability. The Distributor shall comply to the best of its
ability with any and all traceability programmes in effect at
any time as initiated by the Company.
(g) Financial and Credit Information. If so requested by the
Company, the Distributor agrees to provide to the Company
adequate financial information on a confidential basis and if
requested credit references, to assure the Company of the
Distributor's ongoing financial capacity to conduct its
business.
4.2 The parties hereto acknowledge that Pure Technologies are expert in
acoustic monitoring of the failure of tensioned reinforcements, including the
main cables and suspender ropes of suspension bridges and the stay-cables of
cable-stayed bridges. The parties also acknowledge that Fugro Geotechnical
Services (HK) Limited are expert in the instrumentation of civil engineering and
other structures for load, pressure, movement and other parameters. These two
areas of expertise are exclusive and complementary.
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The Company and the Distributor agree not to compete in the technical
specialism of the other, in the area defined within Clause 2 Territory, during
the period of this agreement and for a period of two years after the termination
of the agreement.
4.3 To refrain from any expenditure on behalf of the Company, or from
incurring any liability in the name of the Company, without the prior written
consent of the Company.
4.4 To use its best efforts to promote, safeguard, and protect the
interests of the Company, and the Company's rights to the Products, consistent
with the best business practices.
5. Compensation.
5.1 Percentage of Sales.
The Company will pay the Distributor compensation based upon the
following:
(a) For sales delivered within the Territory, based upon orders
procured by the Distributor and/or enquiries referred to the
Company by the Distributor, the Company will allow to the
Distributor a discount of twenty percent (20%) of the normal
selling price of the Products.
(b) For sales delivered outside the Territory, based upon orders
procured by the Distributor within the Territory, ten percent
(10%) of the net collected prices at which the Products are
sold.
(c) For any order which is not procured by the Distributor, but
which is delivered into the Territory, five percent (5%) of
the net collected prices at which the Products are sold.
For the purposes of this Section 5.1 "net collected prices" means the
amounts actually received by the Company for the sale of such Products
less any discounts or commissions paid to a third party in respect of
such sale.
5.2 Payment.
The Compensation to the Distributor for each sale under Sub-section
5.1.b and 5.1.c will become owing after receipt of payment by the Company for
such sale, and will become due and payable at the end of the calendar quarter in
which such payment is received.
6. Terms of Sales.
6.1 Price of Products.
The prices at which the Products are to be sold by the Company will be
fixed by the Company, subject to change by the Company from time to time, and
communicated to the Distributor at periodic intervals. Such price changes shall
be effective thirty (30) days after the date of written notice thereof to the
Distributor. Any order or written quote from the Distributor received and
accepted by the Company prior to a price increase on Products which are the
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subject of any such order or written quote shall be shipped at the price in
effect at the time of acceptance of such order or quote by the Company. For
purposes of calculating the percentages described in Subsections 5.l.b and
5.l.c, the prices will exclude all applicable sales and excise taxes. In the
event the Company grants discounts based upon quantity purchases or otherwise,
the percentage compensation to be paid to the Distributor will be based upon the
actual discounted price at which the sale occurs, rather than the normal selling
price.
6.2 Purchase Orders.
All purchase orders shall be subject to acceptance by the Company. No
purchase order shall be binding upon the Company until acceptance by the Company
is communicated to the Distributor.
6.3 Payment Terms.
The Distributor agrees that all purchase orders which it procures for
the Company for direct shipment to the purchaser shall be payable by Letter of
Credit or certified funds, or other terms acceptable to the Company. All
payments shall be made in United States Dollars. All Products sold shall be
shipped CIF as defined by INCOTERMS, 1980 edition, unless otherwise agreed in
writing. Purchase Orders placed by the Distributor on the Company shall be
payable 60 days from the date of the Company's invoice for the Products.
7. Delivery of Products.
7.1 Delivery of Products.
All Products will be delivered by common carrier unless otherwise
specified in the purchase order. The Company will not be liable for any delay in
the performance of its obligations in the delivery or shipment of the Products,
or for any damage suffered by any purchaser or the Distributor by reason of such
delay, when such delay is, directly or indirectly, caused by or in any manner
arising from fires, floods, accidents, riots, acts of God, war, governmental
interference, embargoes, strikes, labor difficulties, shortage or labor, fuel,
power, materials, or supplies, transportation delays, or any other cause or
causes (whether or not similar in nature to any of the foregoing) beyond the
Company's control. All orders are accepted by the Company subject to the
Company's ability to obtain the necessary raw materials, and all orders or
contracts as well as shipments are subject to government regulations, orders,
directives, and restrictions which may be in effect from time to time.
8. Confidentiality.
8.1 Confidential Information.
Distributor shall keep confidential the Agreement all data, data bases,
computer programs, marketing plans and information provided to Distributor by or
on behalf of the Company in connection with the Agreement or Products and all
other confidential and proprietary information of the Company, now existing or
to be developed in the future (such information is intended to include all
information of any kind whatsoever related to the Company's business which is
not generally and publicly known, including information received
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orally or by a confidential writing which, prior to such receipt, was non-public
information of such recipient) (collectively the "Information"), and all
Information (including data generated by operation of the Products) developed by
the operation of the Products, and shall not disclose the Agreement or any such
Information to any person, firm, entity or corporation without the prior written
permission of the Company. Distributor shall be bound by an obligation of
confidence to the Company in respect of any Information or trade secrets. In
respect of such Information, Distributor shall not:
1. disclose, either directly or indirectly, any such Information, or any
part thereof, to any person, firm, corporation or entity except as is
specifically contemplated in this Agreement; and
2. may not use any such Information, or any part thereof, for any purpose
except as is specifically contemplated within this Agreement.
8.2 Trade Secrets.
Upon the termination of this Agreement for any reason whatsoever, the
Distributor shall return all data, prospectuses, advertising, and all
Information concerning the Products (including all software, copies of test
results and other data accumulated), and the Distributor shall not make further
use of any of the materials or technical information, nor disclose or use such
materials or Information for its own account or on behalf of any other person or
entity. Upon termination of this Agreement for any reason, the Distributor shall
discontinue the use of the Company's trade name, trademark, labels, copyrights,
patents, and other advertising media and remove all signs and displays relating
thereto.
9. Intellectual Property.
No rights are granted hereunder to Distributor under any patents,
copyrights, information, trademarks or other intellectual property rights except
as are incidental only to the sale of Products by the Distributor and the right
to use such Products by the Distributor's customers. Whenever the Distributor
shall make reference to its relationship with the Company, whether in
advertising or otherwise, the Distributor shall describe its relationship only
as a distributor of the Products. Any other use by the Distributor of the
Company's trade name, trademark, or any other trade names or trademarks
associated with the Products must be approved in advance in writing by a duly
authorized officer of the Company. The Distributor shall not use any trademark
or trade name of the Company or any variation thereof, alone or in combination
with other words, in connection with any product which has not been supplied by
the company, or as a part of or in connection with the Distributor's corporate
or company name. The Distributor shall not register the Company's trade name or
trademarks or any other trade names or trademarks associated with the Products
in the Territory. All data generated from use of the Products and any
suggestions, improvements, enhancements, derivative works or modifications made
to any of the Products or any part there of shall be the property of the Company
including any copyright patent or other intellectual property rights therein.
Distributor shall sign such documents, assignments or agreements as the Company
may require to protect the Company's rights therein.
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10. Limited Warranty and Limitations.
10.1 The Company provides to its customers only those warranties set out m
the Company's form of agreements and subject to the limits on liability set out
in such agreements. On a case by case basis the Company may provide other
warranty terms or other limits on liability but only if previously authorized by
the Company in writing. NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, IS MADE.
10.2 The Company shall not have any liability of any kind under this
contract unless Distributor notifies the Company of any claimed defect within
the warranty period specified in the Company's form of agreement as measured
from the date of delivery. If a Product is to be returned to the Company,
written authorization must be obtained from the Company, and the Company's
shipping instructions must be followed. If the claimed defect is a result of
misuse, mishandling, abnormal conditions of application or storage, or the
result or unauthorized alteration, the cost of replacement and all related
expenses shall be borne by the Distributor. Any Products returned to the Company
for replacement or refund shall become the property of the Company.
10.3 The Distributor, its agents, and employees shall not make any
statement, representation, warranty, or advertisement concerning the Products
which exceed in scope or are different in meaning from the limited warranty set
forth in Section 10.1. The Distributor shall indemnify and hold the Company
harmless against any claims, liability, costs, and expenses of any nature which
the Company may incur as a result of any such activities.
11. Modification of Products and Labeling.
The Distributor shall not, without the prior written consent of the
Company in each instance obtained, modify the Products or any part thereof or
modify, remove, cover, or add to the labels affixed by the Company to the
Products. if requested by the Distributor, the Company shall affix foreign
translations of labels to Product containers, and the Distributor shall
reimburse the Company for all reasonable expenses incurred as part of such
relabelling.
12. Patent Infringement.
If a patent infringement action is commenced or threatened against the
Company as to one or more of the Products, and the Company elects to discontinue
the sale of any such Products in any part of the Territory, the Distributor
shall discontinue its efforts to sell such Products in any such part of the
Territory immediately upon receipt of written notice thereof from the Company.
13. Termination.
13.1 The Company may terminate this Agreement by giving forty five (45) days
written notice in the following events: (a) Distributor has ceased to function
as a going concern or conduct its operations in the normal course of business as
a distributor, (b) Distributor enters into suspension of payments, or commences
or becomes the subject of, any action in relation to bankruptcy, insolvency,
reorganization, dissolution, or winding up; (c) Distributor has become
insolvent; (d)
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Distributor has made a general assignment for the benefit of creditors; (e)
Distributor has attempted to assign, convey, or otherwise transfer in whole or
in part any of Distributor's rights hereunder to any third party without the
Company's prior written consent based on Distributor's full, true, and correct
disclosure of the proposed transaction to the Company; (f) any material change
in the general management, ownership, or control including sale, transfer, or
relinquishment by Distributor of any substantial interest in the ownership of
the business to be carried on by Distributor under this Agreement, unless such
changes are approved in advance and in writing by the president of the Company;
(g) conviction of Distributor or any principal officer or manager of Distributor
for any crime tending to affect adversely the ownership or operation of the
business; (h) Distributor provides falsified data or information to the Company;
or (i) Distributor breaches any of the obligations under Sections 8.1 or 8.2
respecting Information or Section 9 respecting intellectual property. The
Distributor hereby acknowledges that forty five (45) days is a reasonable and
adequate period of notice under the circumstances, including the extent of the
expenditures, investments, and commitments made and to be made by Distributor
under this Agreement.
13.2 In the event either party commits a material breach of this Agreement
and such party fails to remedy such default within sixty (60) days of receipt of
written notice thereof from the opposite party, the party giving such notice
may, at any time thereafter upon written notice, terminate this Agreement. The
Distributor hereby acknowledges that sixty (60) days is a reasonable and
adequate period of notice under the circumstances, including the extent of the
expenditures, investments, and commitments made and to be made by Distributor
under this Agreement.
13.3 Either party may terminate this Agreement without cause upon the
expiration of a ninety (90) day period after giving written notice thereof to
the other party. The Distributor hereby acknowledges that ninety (90) days is a
reasonable and adequate period of notice under the circumstances, including the
extent of the expenditures, investments, and commitments made and to be made by
Distributor under this Agreement.
13.4 In the event of termination of this Agreement, whether upon the
expiration of the term of this Agreement or pursuant to the provisions of
Section 13.1, 13.2, or 13.3, the Company shall not be liable to the Distributor
for compensation, reimbursement, or damages on account of the loss of
prospective profits on anticipated sales, or on account of expenditures,
investments, leases, employee termination pay, or other commitments or expenses
relating to the business or goodwill or the Distributor.
13.5 Termination of this Agreement shall not relieve or release the
Distributor from any payments which the Distributor may owe the Company under
the terms of this Agreement, including without limitation, payments for Products
delivered to the distributor.
13.6 Acceptance by the Company of any orders from the Distributor after
termination of this Agreement shall not constitute a renewal of this Agreement
or a waiver of the right of the Company to treat this Agreement as terminated.
13.7 Notwithstanding anything contained herein to the contrary, Sections 8
and 9 of this Agreement shall survive termination of this Agreement and shall
remain in full force and effect.
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14. Relationship.
The Distributor is an independent contractor. Nothing herein shall
constitute the Distributor as an employee or agent of the Company, nor the legal
representative of the Company for any purpose or reason not set forth herein.
The Distributor does not have the authority to assume or create any obligation,
express or implied, on behalf of or in the name of the Company, or to bind the
Company in any manner whatsoever, except as authorized in writing by the
Company. The Distributor shall be solely responsible for the operations of its
business and all costs incurred in such operations, solely responsible for any
injury, liabilities, or damage incurred in the conduct of its business, for
complying with all laws and regulations of the nation, state, and political
subdivision in which it transacts its business, and shall bear all expenses in
connection therewith. It is the express intent of the parties, pursuant to their
right to freedom of contract, that this Agreement shall govern the obligations
of each to the other and the right of each resulting from such relationship and
that no Ordinance, Regulation or any other law purporting to alter the
relationship between the Company and the Distributor, presently in force or
hereafter enacted, may apply to the rights and obligations of and between the
parties under this Agreement. The rights and obligations of the parties in the
event of termination of this Agreement have been separately bargained for, and
are intended by both parties to be in lieu of any rights or obligations arising
under any Ordinance, Regulation or any other law purporting to alter the
relationship of the parties.
15. Compliance with Law.
The Distributor shall comply with all prevailing laws and regulations
of the Territory pertaining to the importation, distribution, sales, promotion,
and marketing of the Products in the Territory and in any manner otherwise
pertaining to performance by the Distributor of its obligations under this
Agreement. The Distributor shall accept and assume full responsibility for any
and all civil or criminal liabilities and costs that may be assessed as a result
of the Distributor's performance of Distributor's duties under this Agreement
and shall hold harmless and defend the Company from and against any and all
fines, damages, levies, costs, and judgment which the Company may be required to
pay as a result of the Distributor's performance of its duties thereunder in
violation thereof.
16. Miscellaneous Provisions.
16.1 Controlling Law. This Agreement is made with reference to and shall be
construed in accordance with the law of the Hong Kong Special Administration
Region. The Parties acknowledge and agree that this Agreement shall not be
subject to the provisions of the United Nations Convention on Contracts for the
International Sale of Goods.
16.2 Arbitration. Any disputes or controversies arising under this Agreement
shall be determined by binding arbitration in accordance with the rules and
procedures for arbitration in Hong Kong, which arbitration shall be conducted in
Honolulu, Hawaii. Each party shall bear its own costs of the arbitration and
shall pay one half cost of the costs of the establishment and operation of the
arbitration tribunal.
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16.3 Notices. All notices, request, demands, and other communications given
under this Agreement shall be in English and shall be in writing and shall be
deemed to have been duly given at the time of delivery, if personally delivered,
or seventy-two (72) hours after delivery to an appropriate courier service and
addressed to the parties at the addresses set forth beneath their respective
signatures or at such other address as a party may designate at any time in
writing by notice to the other in accordance with this Subsection 16.3.
16.4 Waiver and Modification. The failure of either party at any time to
require strict performance of any provision of this Agreement shall not in any
manner affect the right of such party at a later time to enforce the same. No
waiver by either party of the breach of any term or covenant contained in this
Agreement shall be deemed to be a release or affect any liability resulting from
such breach. No waiver of any nature, whether by conduct, course of dealing, or
otherwise, in any one or more instances shall be deemed to be or construed as a
continuing waiver of any such condition or breach, or as a waiver of any other
condition or of any other breach of any other term or covenant of this
Agreement.
16.5 Severability. If any provision of this Agreement is held and determined
to be invalid by any arbitrator or court interpreting such provision, such
arbitrator or court shall be entitled to modify or otherwise reduce the scope or
effect of such offending provision, and to enforce such provision as so
modified, provided that such modification does not materially modify the intent
of the parties in entering into this Agreement. If any provision of this
Agreement cannot be so modified without offending the intent of the parties,
such provision shall be deemed to be null and void, and the remaining provisions
of this Agreement shall remain in full force and effect as if such invalid
provision had not been included in the Agreement.
16.6 Successors in Interest. This Agreement shall be binding upon and inure
to the benefit of the successors, heirs, assigns, and personal representatives
of the parties.
16.7 Assignment. The Distributor may not assign or sublicense any of its
rights or obligations under this Agreement nor shall the Distributor appoint or
designate any subdistributor of the Products, without the prior written consent
of the Company, which consent may be granted or withheld for any reason or for
no reason in the sole and exclusive judgment of the Company. Any attempted
assignment, appointment or designation without the prior written consent of the
Company shall be null and void.
16.8 Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the subject matter of this Agreement. There are no
representations, warranties, understandings, or agreements other than those
expressly set forth herein. Time is expressly declared to be of the essence of
this Agreement.
16.9 Execution by Counterpart. This Agreement may be executed separately or
independently in any number of counterparts, each and all of which together
shall be deemed to have been executed simultaneously and for all purposes to be
one agreement.
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16.10 Captions. The respective captions of the Sections are inserted for
convenience of reference only and shall not be deemed to modify or otherwise
affect in any respect any of the provisions hereof
DATED the day and year first above written.
PURE TECHNOLOGIES INC
By: "▇▇▇▇▇ ▇▇▇▇▇▇▇"
--------------------------------------
Its Chairman
--------------------------------------
Address: #1050, ▇▇▇ - ▇▇ ▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
FUGRO GEOTECHNICAL SERVICES (HK)
LIMITED
By: "▇. ▇▇▇▇"
--------------------------------------
Its Managing Director
--------------------------------------
Address: ▇▇▇▇ ▇▇, ▇▇/▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
43-47 ▇▇▇▇ ▇▇▇ Street, Fo Tan
Shatin, NT, Hong Kong
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SUB-DISTRIBUTORSHIP AGREEMENT
THIS SUB-DISTRIBUTORSHIP AGREEMENT ("Agreement") is made and entered
into as of this 16th Day of April, 2000, by and between FUGRO LIMITED
("Distributor") and TRANSPORT RESEARCH LABORATORY ("Sub-Distributor"). This
Sub-Distributorship Agreement is made with the agreement of PURE TECHNOLOGIES
INC. of Calgary Alberta ("Company").
In consideration of the mutual covenants and undertakings hereinafter
set forth, the parties agree as follows:
17. Appointment
The Distributor hereby appoints the Sub-Distributor as its non-exclusive sales
representative in the Territory, as defined in Section 2 of this Agreement, and
the Sub-Distributor hereby accepts such appointment, to sell the products and
licenses of the Company (the "Products") in accordance with the terms and
conditions of this Agreement.
The Distributor appoints the Sub-Distributor as the exclusive Sub-Distributor in
the Highway Sector, and non-exclusively in the Transport Sector. Such projects
will be identified in writing on an individual basis, and acknowledged in
writing by the Distributor to be "Projects initiated by the Sub-Distributor.
18. Territory & Markets
The Sub-Distributor shall have the non-exclusive right to sell the products in
the geographic area described as follows: United Kingdom including England,
Northern Ireland, Scotland and Wales ("Territory"). The Territory may be
modified from time to time by the prior written agreement of the parties.
19. Term
The term of this Agreement shall commence on the date first above written, and,
unless terminated earlier as provided in Section 14, shall continue for one (1)
year terminating upon the first anniversary of such date, provided that the
Agreement shall thereafter be renewed without action by either party for
successive periods of one (1) year each, subject to the termination provisions
of Section 13, unless either party gives written notice objecting to such
renewal at least sixty (60) days prior to the expiration of the then current
one-year term.
20. Covenants and Undertaking of the Sub-Distributor
The Sub-Distributor covenants and agrees as follows:
20.1 To use reasonable efforts, to promote sales of the Products. The
Sub-Distributor further agrees that it will refrain from soliciting sales or
otherwise promoting sales of the Products outside the Territory, except where it
has a separate distributorship agreement with the Company. These obligations
include, without limitation, the following:
(a) Specific Promotion Efforts. All advertising or promotional
materials, if any, utilized by the Sub-Distributor, its
agents, or employees in conjunction with the
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sale of the Products, other than such sales literature as is
furnished to the Sub-Distributor by the Distributor, shall be
approved in writing by the Company and the Distributor, prior
to its use or dissemination.
(b) Follow-up on Leads. All leads obtained by the Sub-Distributor
for sales of Products outside the Territory shall be forwarded
to the Distributor, who will forward them to the Company. The
Sub-Distributor will produce and update a Sales & Marketing
plan, with targets. The Distributor and Sub-Distributor will
meet regularly to co-ordinate marketing effort between the
Sub-Distributor and the Distributor, and to review the Sales
and Marketing Plan.
(c) Visits by the Company. The Distributor shall have the right
upon reasonable notice to visit and observe the
Sub-Distributor's place of business and to accompany the
Sub-Distributor during sales or servicing calls with
customers. Additionally, the Distributor agrees that the
Company may, at any time during reasonable business hours,
review and inspect the service facilities for the Products.
(d) Customer Complaints. The Sub-Distributor and the Distributor
each agree to cooperate fully in dealing with customer
complaints concerning the Products and to take such action to
resolve such complaints as may be requested by the Distributor
or the Company. In this regard, the Sub-Distributor and the
Distributor each agree promptly to furnish the other with any
information that may be required by the other to comply with
any governmental laws or regulations or that may be required
to minimize the potential impact of a recall of any of the
Products.
(e) Traceability. The Sub-Distributor shall comply to the best of
its ability with any and all traceability programmes in effect
at any time as initiated by the Distributor.
(f) Financial and Credit Information. If so requested by the
Distributor, the Sub-Distributor agrees to provide to the
Distributor with adequate financial information on a
confidential basis and if requested credit references, to
assure the Distributor of the Sub-Distributor's ongoing
financial capacity to conduct its business.
20.2 The parties hereto acknowledge that Pure Technologies are [IS] expert
in acoustic monitoring of failure of tensioned reinforcements, including the
main cables and suspender ropes of suspension bridges and the stay-cables of
cable-stayed bridges.
The Sub-Distributor agrees not to compete in this technical
specialism in the area defined within Clause 2 Territory,
during the period of this agreement and for a period of two
years after the termination of the agreement.
20.3 To refrain from any expenditure on behalf of the Distributor and/or
Company, or from incurring any liability in the name of the Distributor and/or
Company, without the prior written consent of the Distributor and/or Company.
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20.4 To use its best efforts to promote, safeguard, and protect the
interests of the Distributor and the Company, and the Company's rights to the
Products, consistent with the best business practices.
21. Compensation
21.1 Payment
(a) For sales delivered within the Territory, based upon orders on
'Projects initiated by the Sub-Distributor', the Distributor
will provide the system to the Sub-Distributor at the normal
Company selling price of the Products (excluding
installation), less a discount of fifteen (15%) percent
commission.
(b) For sales delivered within the Territory, based upon orders on
'Products initiated by the Distributor' and for which
compensation to the Sub-Distributor is owing, subject to
specific arrangements as agreed on a case by case basis
between the Distributor and Sub-Distributor, the Distributor
will make a payment to the Sub-Distributor a sum of fifteen
(15%) percent of the normal Company selling price of the
Products. Payment will become owing after receipt of payment
by the Distributor for such a sale, and will become due and
payable within 10 days of when such payment is received.
(c) In any event, when either clause 5.1(a) or 5.1(b) is not
directly applicable, other arrangements for payment of
compensation to the Sub-Distributor by the Distributor can be
made as otherwise agreed.
22. Terms of Sales
22.1 Price of Products
The prices at which the Products are to be sold by the Distributor will be fixed
by the Distributor, subject to change by the Distributor from time to time, and
communicated to the Sub-Distributor for each Project initiated by the
Sub-Distributor, with a stated period of validity. For purposes of calculating
the percentages described in Section 5, the prices will exclude all applicable
sales and excise taxes. In the event the Company grants discounts based upon
quantity purchases or otherwise, the percentage compensation to be paid to the
Distributor will be based upon the actual discounted price at which the sale
occurs, rather than the normal selling price.
22.2 Purchase Orders
All purchase orders shall be subject to acceptance by the Distributor and the
Company. No purchase order shall be binding upon the Distributor until
acceptance by the Distributor is communicated to the Sub-Distributor.
22.3 Payment Terms
The Sub-Distributor agrees that all purchase orders, which it procures for the
Company for direct shipment to the purchaser, shall be payable by Letter of
Credit or certified funds, or other terms acceptable to the Company. All
Products sold shall be shipped CIF as defined by INCOTERMS,
- 14 -
1980 edition, unless otherwise agreed in writing. Purchase Orders placed by the
Sub-Distributor shall be payable 60 days from the date of the Company's invoice
for the Products.
23. Delivery of Products
23.1 Delivery of Products
All Products will be delivered by common carrier unless otherwise specified in
the purchase order. The Distributor will not be liable for any delay in the
performance of its obligations in the delivery or shipment of the Products, or
for any damage suffered by any purchaser or the Sub-Distributor by reason of
such delay, when such delay is, directly or indirectly, caused by or in any in
any manner arising from fires, floods, accidents, riots, acts of God, war,
governmental interference, embargoes, strikes, labor difficulties, shortage of
labor, fuel, power, materials or supplies, transportation delays, or any other
cause or causes (whether or not similar in nature to any of the foregoing)
beyond the Company's control. All orders are accepted by the Company subject to
the Company's ability to obtain the necessary raw materials, and all orders or
contracts as well as shipments are subject to government regulations, orders,
directives, and restrictions which may be in effect from time to time.
24. Confidentiality
24.1 Confidential Information
The Sub-Distributor shall keep confidential the details of the Agreement, all
data, data bases, computer programs, marketing plans and information provided to
Sub-Distributor by or on behalf of the Distributor or the Company in connection
with the Agreement or Products and all other confidential and proprietary
information of the Distributor or the Company, now existing or to be developed
in the firm (such information is intended to include all information of any kind
whatsoever related to the Distributor's or Company's business which is not
generally and publicly known, including information received orally or by a
confidential writing which, prior to such receipt, was non-public information of
such recipient) (collectively the "Information"), and all Information (including
data generated by operation of the Products) developed by the operation of the
Products, and shall not disclose the Agreement or any such Information to any
person, firm, entity or corporation without the prior written permission of the
Distributor. The Sub-Distributor shall be bound by an obligation of confidence
to the Distributor and Company in respect of any Information or trade secrets.
In respect of such Information, the Sub-Distributor shall not:
(i) disclose, either directly or indirectly, any such Information,
or any part thereof to any person, firm, corporation or entity
except as is specifically contemplated in this Agreement; and
(ii) may not use any such Information, or any part thereof for any
purpose except as is specifically contemplated within this
Agreement.
24.2 Trade Secrets
Upon the termination of this Agreement for any reason whatsoever, the
Sub-Distributor shall return all data, prospectuses, advertising, and all
Information concerning the Products (including
- 15 -
all software, copies of test results and other data accumulated), and the
Sub-Distributor shall not make further use of any of the materials or technical
information, nor disclose or use such materials or Information for its own
account or on behalf of any other person or entity. Upon termination of this
Agreement for any reason, the Sub-Distributor shall discontinue the use of the
Distributor's and Company's trade names, trademarks, labels, copyrights,
patents, and other advertising media and remove all signs and displays relating
thereto.
25. Intellectual Property
No rights are granted hereunder to the Sub-Distributor under any patents,
copyrights, Information, trademarks or other intellectual property rights except
as are incidental only to the sale of Products by the Distributor and the right
to use such Products by the Distributor's customer.
Whenever the Sub-Distributor shall make reference to its relationship with the
Distributor and Company, whether in advertising or otherwise, the
Sub-Distributor shall describe its relationship only as a Sub-Distributor of the
Products. Any other use by the Sub-Distributor of the Distributor's and
Company's trade name, trademark, or any other trade names or trademarks
associated with the Products must be approved in advance in writing by a duly
authorized officer of the Distributor and Company. The Sub-Distributor shall not
use any trademark or trade name of the Distributor and Company or any variation
thereof alone or in combination with other words, in connection with any product
which has not been supplied by the Distributor and Company, or as a part of or
in connection with the Sub-Distributor's corporate name. The Sub-Distributor
shall not register the Distributor or Company's trade name or trademarks or any
other trade names or trademarks associated with the Products in the Territory.
All data generated from use of the Products and any suggestions, improvements,
enhancements, derivative works or modifications made to any of the Products or
any part there of shall be the property of the Company including any copyright,
patent or other intellectual property rights therein. The Sub-Distributor shall
sign such documents, assignments or agreements as the Company may require to
protect the Company's rights therein.
26. Limited Warranty and Limitations
26.1 The Company provides to its customers only those warranties set out in
the Company's form of agreements and subject to the limits on liability set out
in such agreements. On a case by case basis the Company may provide other
warranty terms or other limits on liability but only if previously authorized by
the Company in writing. NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, IS MADE.
26.2 The Distributor and the Company shall not have any liability of any
kind under this contract unless the Sub-Distributor notifies the Distributor and
thereby the Company of any claimed defect within the warranty period specified
in the Distributor's form of agreement as measured from the date of delivery. If
a Product is to be returned to the Distributor, written authorization must be
obtained from the Distributor, and the Distributor's shipping instructions must
be followed. If the claimed defect is a result of misuse, mishandling, abnormal
conditions of application or storage, or the result or unauthorized alteration,
the cost of replacement and all related expenses shall be borne by the
Sub-Distributor. Any Products returned to the Distributor for replacement or
refund shall become the property of the Distributor.
- 16 -
26.3 The Sub-Distributor, its agents, and employees shall not make any
statement, representation, warranty, or advertisement concerning the Products
which exceed in scope or are different in meaning from the limited warranty set
forth in Section 10.1. The Sub-Distributor shall indemnify and hold the
Distributor and the Company harmless against any claims, liability, costs, and
expenses of any nature which the Distributor and the Company may incur as a
result of any such activities.
27. Modification of Products and Labeling. The Sub-Distributor shall not,
without the prior written consent of the Company in each instance obtained,
modify the Products or any part thereof or modify, remove, cover, or add to the
labels affixed by the Company to the Products.
28. Patent. If a patent infringement action is commenced or threatened
against the Company as to one or more of the Products, and the Company elects to
discontinue the sale of any such Products in any part of the Territory, the
Sub-Distributor shall discontinue its efforts to sell such Products in any such
part of the Territory immediately upon receipt of written notice thereof' from
the Company.
29. Termination
29.1 The Distributor may terminate this Agreement by giving forty five (45)
days written notice in the following events:
(a) Sub-Distributor has ceased to function as a going concern or
conduct its operations in the normal course of business as a
distributor;
(b) Sub-Distributor enters into suspension of payments, or
commences or becomes the subject of, any action in relation to
bankruptcy, insolvency, reorganization, dissolution, or
winding up;
(c) Sub-Distributor has become insolvent;
(d) Sub-Distributor has made a general assignment for the benefit
of creditors;
(e) Sub-Distributor has attempted to assign, convey, or otherwise
transfer in whole or in part any of Sub-Distributor's rights
hereunder to any third party without the Distributor's prior
written consent based on Sub-Distributor's full, true, and
correct disclosure of the proposed transaction to the
Distributor;
(f) any material change in the general management, ownership, or
control including sale, transfer, or by Sub-Distributor of any
substantial interest in the ownership of the business to be
carried on by Sub-Distributor under this Agreement, unless
such changes are approved in advance and in writing by the
Distributor;
(g) conviction of Sub-Distributor or any principal officer or
manager of Sub-Distributor for any crime tending to affect
adversely the ownership or operation of the business;
(h) Sub-Distributor provides falsified data or information to the
Distributor; or
- 17 -
(i) Sub-Distributor breaches any of the obligations under Sections
8.1 or 8.2 respecting Information or Section 9 respecting
intellectual property. The Sub-Distributor hereby acknowledges
that forty five (45) days is a reasonable and adequate period
of notice under the circumstances, including the extent of the
expenditures, investments, and commitments made and to be made
by Sub-Distributor under this Agreement.
29.2 In the event either party commits a material breach of this Agreement
and such party fails to remedy such default within sixty (60) days of receipt of
written notice thereof from the opposite party, the party giving such notice
may, at any time thereafter upon written notice, terminate this Agreement. The
Sub-Distributor hereby acknowledges that sixty (60) days is a reasonable and
adequate period of notice under the circumstances, including the extent of the
expenditures, investments, and commitments made and to be made by
Sub-Distributor under this Agreement.
29.3 Either party may terminate this Agreement without cause upon the
expiration of a ninety (90) day period after giving written notice thereof to
the other party. The Sub-Distributor hereby acknowledges that ninety (90) days
is a reasonable and adequate period of notice under the circumstances, including
the extent of the expenditures, investments, and commitments made and to be made
by Distributor under this Agreement.
29.4 In the event of termination of this Agreement, whether upon the
expiration of the term of this Agreement or pursuant to the provisions of
Section 13.1, 13.2, or 13.3, the Distributor shall not be liable to the
Sub-Distributor for compensation, reimbursement, or damages on account of the
loss of prospective profits on anticipated sales, or on account of expenditures,
investments, leases, employee termination pay, or other commitments or expenses
relating to the business or goodwill of the Sub-Distributor.
29.5 Termination of this Agreement shall not relieve or release the
Sub-Distributor from any payments the Sub-Distributor may owe the Distributor
under the terms of this Agreement.
29.6 Acceptance by the Distributor of any orders from the Sub-Distributor
after termination of this Agreement shall, not constitute a renewal of this
Agreement or a waiver of the right of the Distributor to treat this Agreement as
terminated.
29.7 Notwithstanding anything contained herein to the contrary, Sections 8
and 9 of this Agreement shall survive termination of this Agreement and shall
remain in fall force and effect.
30. Relationship
The Sub-Distributor is an independent organization. Nothing herein shall
constitute the Sub-Distributor as an employee or agent of the Distributor, nor
the legal representative of the Distributor for any purpose or reason not set
forth herein. The Sub-Distributor does not have the authority to assume or
create any obligation, express or implied, on behalf of or in the name of the
Distributor, or to bind the Distributor in any manner whatsoever, except as
authorized in writing by the Distributor. The Sub-Distributor shall be solely
responsible for the operations of its business and all costs incurred in such
operations, solely responsible for any injury, liabilities, or damage incurred
in the conduct of its business, for complying with all laws and regulations of
- 18 -
the nation, state, and political subdivision in which it transacts its business,
and shall bear all expenses in connection therewith. It is the express intent of
the parties, pursuant to their right to freedom of contract, that this Agreement
shall govern the obligations of each to the other and the right of each
resulting from such relationship and that no Ordinance, Regulation or any other
law purporting to alter the relationship between the Distributor and the
Sub-Distributor, presently in force or hereafter enacted, may apply to the
rights and obligations of and between the parties under this Agreement. The
rights and obligations of the parties in the event of termination of this
Agreement have been separately bargained for, and are intended by both parties
to be in lieu of any rights or obligations arising under any Ordinance,
Regulation or any other law purporting to alter the relationship of the parties.
31. Compliance with Law
The Sub-Distributor shall comply with all prevailing laws and regulations of the
Territory pertaining to the importation, distribution, sales, promotion, and
marketing of the Products in the Territory and in any manner otherwise
pertaining to performance by the Sub-Distributor of its obligations under this
Agreement. The Sub-Director shall accept and assume full responsibility for any
and all civil or criminal liabilities and costs that may be assessed as a result
of the Sub-Distributor's performance or Sub-Distributor's duties under this
Agreement and shall hold harmless and defend the Distributor from and against
any and all fines, damages, levies, costs, and judgment which the Distributor
may be required to pay as a result of the Sub-Distributor's performance of its
duties thereunder in violation thereof.
32. Miscellaneous Provisions
32.1 Controlling Law. This Agreement is made with reference to and shall be
construed in accordance with the laws of the England. The Parties acknowledge
and agree that this Agreement shall not be subject to the provisions of the
United Nations Convention on Contracts for the International Sale of Goods.
32.2 Arbitration. Any disputes or controversies arising under this Agreement
shall be determined by binding arbitration in accordance with the rules and
procedures for arbitration in England, which arbitration shall be conducted in
London England. Each party shall bear its own costs of the arbitration and shall
pay one half cost of the costs of the establishment and operation of the
arbitration tribunal.
32.3 Notices. All notices, request, demands, and other communications given
under this Agreement shall be in English and shall be in writing and shall be
deemed to have been duly given at the time of delivery, if personally delivered,
or seventy-two (72) hours after delivery to an appropriate courier service and
addressed to the parties at the addresses set forth beneath their respective
signatures or at such other address as a party may designate at any time in
writing by notice to the other in accordance with this Subsection 16.3.
32.4 Waiver and Modification. The failure of either party at any time to
require strict performance of any provision of this Agreement shall not in any
manner affect the right of such party at a later time to enforce the same. No
waiver by either party of the breach of any term or covenant contained in this
Agreement shall be deemed to be a release or affect any liability resulting from
such breach. No waiver of any nature, whether by conduct, course of dealing, or
- 19 -
otherwise, in any one or more instances shall be deemed to be or construed as a
continuing waiver of any such condition or breach, or as a waiver of any other
condition or of any other breach of any other term or covenant of this
Agreement.
32.5 Severability. If any provision of this Agreement is held and determined
to be invalid by any arbitrator or court interpreting such provision, such
arbitrator or court shall be entitled to modify or otherwise reduce the scope or
effect of such offending provision, and to enforce such provision as so
modified, provided that such modification does not materially modify the intent
of the parties in entering into this Agreement. If any provision of this
Agreement cannot be so modified without off-ending the intent of the parties,
such provision shall be deemed to be null and void, and the remaining provisions
of this Agreement shall, remain in full force and effect as if such invalid
provision had not been included in the Agreement.
32.6 Successors in Interest. This Agreement shall be binding upon and inure
to the benefit of the successors, heirs, assigns, and personal representatives
of the parties.
32.7 Assignment. The Sub-Distributor may not assign or sublicense any of its
rights or obligations under this Agreement, nor shall the Sub-Distributor
appoint or designate any subordinate distributor of the Products, without the
prior written consent of the Distributor, which consent may be granted or
withheld for any reason or for no reason in the sole and exclusive judgment of
the Distributor. Any attempted assignment, appointment, or designation without
the prior written consent of the Distributor shall be null and void.
32.8 Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the subject matter of this Agreement. There are no
representations, warranties, or agreements other than those expressly set forth
herein. Time is expressly declared to be of the essence of this Agreement.
32.9 Execution by Counterpart. This Agreement may be executed separately or
independently in any number of counterparts, each and all, of which together
shall be deemed to have been executed simultaneously and for all purposes to be
one agreement.
32.10 Captions. The respective captions of the Sections are inserted for
convenience of reference only and shall not be deemed to modify or otherwise
affect in any respect any of the provisions hereof.
33. Communication
The routing of all communication related to the sale and services with the UK
will be guided by the need to provide swift and meaningful response to the end
user's requirements.
All routine correspondence from the Sub-Distributor to the Company related to UK
projects shall be routed via the Distributor. However, when there is a benefit
in direct communication between the Company and the Sub-Distributor,
correspondence shall be simultaneously copied to the Distributor.
The Distributor reserves the right to require that all correspondence between
the Company and the Distributor related to UK projects and after sales service
should be routed via the Distributor.
- 20 -
DATED the day and year first above written.
TRANSPORT RESEARCH
LABORATORY
By: "S.D. Rea"
--------------------------------------
Its Programme Manager
--------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇. ▇▇▇▇ ▇▇▇
FUGRO LIMITED
By: "▇▇▇▇▇ ▇▇▇▇▇▇"
--------------------------------------
Its Division Head
--------------------------------------
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇. ▇▇▇ ▇▇▇
PURE TECHNOLOGIES INC.
By: "▇. ▇▇▇▇▇▇▇"
--------------------------------------
Its Vice President/General Manager
--------------------------------------
Address: 1050, ▇▇▇ - ▇▇ ▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
- 21 -
DISTRIBUTORSHIP AGREEMENT
THIS DISTRIBUTORSHIP AGREEMENT ("Agreement") is made and entered into
as of this 1st Day of December, 1997, by and between PURE TECHNOLOGIES INC, OF
CALGARY, ALBERTA ("Company"), and FUGRO LIMITED ("Distributor").
In consideration of the mutual covenants and undertakings hereinafter
set forth, the parties agree as follows:
34. Appointment
The Company hereby appoints the Distributor as its exclusive sales
representative in the Territory, as defined in Section 2 of this Agreement, and
the Distributor hereby accepts such appointment, to sell the products and
licenses of the Company (the "Products") in accordance with the terms and
conditions of this Agreement. The use of the term sales of Products or similar
terms in this Agreement shall refer to sales of products and sale of licenses to
use the data acquisition software associated with the use of the products.
35. Territory.
The Distributor shall have the exclusive right to sell the products in
the geographic area described as follows: United Kingdom including England,
Northern Ireland, Scotland and Wales ("Territory"). The Territory may be
modified from time to time by the prior written agreement of the parties.
36. Term.
The term of this Agreement shall commence on the date first above
written, and, unless terminated earlier as provided in Section 14, shall
continue for one (1) year terminating upon the first anniversary of such date,
provided that the Agreement shall thereafter be renewed without action by either
party for successive periods of one (1) year each, subject to the termination
provisions of Section 13, unless either party gives written notice objecting to
such renewal at least sixty (60) days prior to the expiration of the then
current one-year term.
37. Covenants and Undertakings of Distributor
The Distributor covenants and agrees as follows:
37.1 To use its best efforts, and to spend as much time and as much of its
resources as may reasonably be required, to promote sales of the Products. The
Distributor further agrees that it will refrain from soliciting sales or
otherwise promoting sales of the Products outside the Territory. These
obligations include, without limitation, the following:
(a) Registration and Licensure. The Distributor agrees to use its
best efforts to promptly obtain from the proper authorities in
the Territory at its own cost and expense, all registrations,
licenses, and approvals required for the import, sales, and
distribution by the Distributor of the Products in the
Territory.
- 22 -
(b) Specific Promotion Efforts. The Distributor shall, at its
expense, distribute sales literature describing the Products,
which the Company shall provide, promote the sale of the
Products through trade publications, and exhibit the Products
at exhibitions at which products of the same or similar nature
are exhibited. All advertising or promotional materials, if
any, utilized by the Distributor, its agents, or employees in
conjunction with the sale of the Products, other than such
sales literature as is furnished to the Distributor by the
Company, shall be approved in writing by the Company prior to
its use or dissemination.
(c) Follow-up on Leads. All leads furnished to the Distributor by
the Company shall be contacted within a reasonable time and a
report of the results of such contacts shall be submitted
promptly to the Company. All leads obtained by the Distributor
for sales of Products outside the Territory shall be forwarded
to the Company.
(d) Visits by the Company. The Company shall have the right upon
reasonable notice to visit and observe the Distributor's place
of business and to accompany the Distributor during sales or
servicing calls or training sessions with customers.
Additionally, the Distributor agrees that the Company may, at
any time during reasonable business hours, review and inspect
the service facilities for the Products.
(e) Customer Complaints. The Distributor and the Company each
agree to cooperate fully in dealing with customer complaints
concerning the Products and to take such action to resolve
such complaints as may be requested by the Company. In this
regard, the Distributor and the Company each agree promptly to
furnish the other with any information that may be required by
the other to comply with any governmental laws or regulations
or that may be required to minimize the potential impact of a
recall of any of the Products.
(f) Traceability. The Distributor shall comply to the best of its
ability with any and all traceability programmes in effect at
any time as initiated by the Company.
(g) Financial and Credit Information. If so requested by the
Company, the Distributor agrees to provide to the Company
adequate financial information on a confidential basis and if
requested credit references, to assure the Company of the
Distributor's ongoing financial capacity to conduct its
business.
37.2 The parties hereto acknowledge that Pure Technologies are expert in
acoustic monitoring of failure of tensioned reinforcements, including the main
cables and suspender ropes of suspension bridges and the stay-cables of
cable-stayed bridges. The parties also acknowledge that Fugro Structural
Monitoring are expert in instrumentation of structures for acceleration, strain,
displacement These two are areas of expertise are exclusive and complementary.
The Company and the Distributor agree not to compete in the technical
specialism of the other, in the area defined within Clause 2 Territory, during
the period of this agreement and for a period of two years after the termination
of the agreement
- 23 -
37.3 To refrain from any expenditure on behalf of the Company, or from
incurring any liability in the name of the Company, without the prior written
consent of the Company.
37.4 To use its best efforts to promote, safeguard, and protect the
interests of the Company, and the Company's rights to the Products, consistent
with the best business practices.
38. Compensation
38.1 Percentage of Sales.
The Company will pay the Distributor compensation based upon the
following:
(a) For sales delivered within the Territory, based upon orders
procured by the Distributor and/or enquiries referred to the
Company by the Distributor, the Company will allow to the
Distributor a discount of twenty percent (20%) of the normal
selling price of the Products.
(b) For sales delivered outside the Territory, based upon orders
procured by the Distributor within the Territory, ten percent
(10%) of the net collected prices at which the Products are
sold.
(c) For any order which is not procured by the Distributor, but
which is delivered into the Territory, five percent (5%) of
the net collected prices at which the Products are sold.
For the purposes of this Section 5.1 "net collected prices" means the
amounts actually received by the Company for the sale of such Products less any
discounts or commissions paid to a third party in respect of such sale.
38.2 Payment.
The Compensation to the Distributor for each sale under Sub-section
5.1(b) and 5.l(c) will become owing after receipt of payment by the Company for
such sale, and will become due and payable at the end of the calendar quarter in
which such payment is received.
39. Terms of Sales.
39.1 Price of Products.
The prices at which the Products are to be sold by the Company will be
fixed by the Company, subject to change by the Company from time to time, and
communicated to the Distributor at periodic intervals. Such price changes shall
be effective thirty (30) days after the date of written notice thereof to the
Distributor. Any order or written quote from the Distributor received and
accepted by the Company prior to a price increase on Products which are the
subject of any such order or written quote shall be shipped at the price in
effect at the time of acceptance of such order or quote by the Company. For
purposes of calculating the percentages described in Subsections 5.l.b and
5.1.c, the prices will exclude all applicable sales and excise taxes. In the
event the Company grants discounts based upon quantity purchases or otherwise,
- 24 -
the percentage compensation to be paid to the Distributor will be based upon the
actual discounted price at which the sale occurs, rather than the normal selling
price.
39.2 Purchase Orders.
All purchase orders shall be subject to acceptance by the Company. No
purchase order shall be binding upon the Company until acceptance by the Company
is communicated to the Distributor.
39.3 Payment Terms.
The Distributor agrees that all purchase orders which it procures for
the Company for direct shipment to the purchaser shall be payable by Letter of
Credit or certified Rinds, or other terms acceptable to the Company. All
payments shall be made in United States Dollars. All Products sold shall be
shipped CIF as defined by INCOTERMS, 1980 edition, unless otherwise agreed in
writing. Purchase Orders placed by the Distributor on the Company shall be
payable 60 days from the date of the Company's invoice for the Products.
40. Delivery of Products.
40.1 Delivery of Products.
All Products will be delivered by c on carrier unless otherwise
specified in the purchase order. The Company will not be liable for any delay in
the performance of its obligations in the delivery or shipment of the Products,
or for any damage suffered by any purchaser or the Distributor by reason of such
delay, when such delay is, directly or indirectly, caused by or in any manner
arising from fires, floods, accidents, riots, acts of God, war, governmental
interference, embargoes, strikes, labor difficulties, shortage or labor, fuel,
power, materials, or supplies, transportation delays, or any other cause or
causes (whether or not similar in nature to any of the foregoing) beyond the
Company's control. All orders are accepted by the Company subject to the
Company's ability to obtain the necessary raw materials, and all orders or
contracts as well as shipments are subject to government regulations, orders,
directives, and restrictions which may be in effect from time to time.
41. Confidentiality.
41.1 Confidential Information
Distributor shall keep confidential the Agreement, all data, data
bases, computer programs, marketing plans and information provided to
Distributor by or on behalf of the Company in connection with the Agreement or
Products and all other confidential and proprietary information of the Company,
now existing or to be developed in the future (such information is intended to
include all information of any kind whatsoever related to the Company's business
which is not generally and publicly known, including information received orally
or by a confidential writing which, prior to such receipt was non-public
information of such recipient) (collectively the "Information"), and an
Information (including data generated by operation of the Products) developed by
the operation of the Products, and shall not disclose the Agreement or any such
Information to any person, firm, entity or corporation without the prior
- 25 -
written permission of the Company. Distributor shall be bound by an obligation
of confidence to the Company in respect of any Information or trade secrets. In
respect of such Information, Distributor shall not:
(a) disclose, either directly or indirectly, any such Information,
or any part thereof, to any person, firm, corporation or
entity except as is specifically contemplated in this
Agreement; and
(b) may not use any such Information, or any part thereof, for any
purpose except as is specifically contemplated within this
Agreement.
41.2 Trade Secrets.
Upon the termination of this Agreement for any reason whatsoever, the
Distributor shall return all data, prospectuses, advertising, and all
Information concerning the Products (including all software, copies of test
results and other data accumulated), and the Distributor shall not make further
use of any of the materials or technical information, nor disclose or use such
materials or Information for its own account or on behalf of any other person or
entity. Upon termination of this Agreement for any reason, the Distributor shall
discontinue the use of the Company's trade name, trademark, labels, copyrights,
patents, and other advertising media and remove all signs and displays relating
thereto.
42. Intellectual Property
No rights are granted hereunder to Distributor under any patents,
copyrights, Information, trademarks or other intellectual property rights except
as are incidental only to the sale of Products by the Distributor and the right
to use such Products by the Distributor's customers. Whenever the Distributor
shall make reference to its relationship with the Company, whether in
advertising or otherwise, the Distributor shall describe its relationship only
as a distributor of the Products. Any other use by the Distributor of the
Company's trade name, trademark, or any other trade names or trademarks
associated with the Products must be approved in advance in writing by a duly
authorized officer of the Company. The Distributor shall not use any trademark
or trade name of the Company or any variation thereof, alone or in combination
with other words, in connection with any product which has not been supplied by
the company, or as a part of or in connection with the Distributor's corporate
or company name. The Distributor shall not register the Company's trade name or
trademarks or any other trade names or trademarks associated with the Products
in the Territory. All data generated from use of the Products and any
suggestions, improvements, enhancements, derivative works or modifications made
to any of the Products or any part there of shall be the property of the Company
including any copyright, patent or other intellectual property rights therein.
Distributor shall sign such documents, assignments or agreements as the Company
may require to protect the Company's rights therein.
43. Limited Warranty and Limitations.
43.1 The Company provides to its customers only those warranties set out in
the Company's form of agreements and subject to the limits on liability set out
in such agreements. On a case by case basis the Company may provide other
warranty terms or other limits on liability but only if
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previously authorized by the Company in writing. NO OTHER WARRANTY, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE.
43.2 The Company shall not have any liability of any kind under this
contract unless Distributor notifies the Company of any claimed defect within
the warranty period specified in the Company's form of agreement as measured
from the date of delivery. If a Product is to be returned to the Company,
written authorization must be obtained from the Company, and the Company's
shipping instructions must be followed. If the claimed defect is a result of
misuse, mishandling, abnormal conditions of application or storage, or the
result or unauthorized alteration, the cost of replacement and all related
expenses shall be borne by the Distributor. Any Products returned to the Company
for replacement or refund shall become the property of the Company.
43.3 The Distributor, its agents, and employees sha,11 not make any
statement, representation, warranty, or advertisement concerning the Products
which exceed in scope or are different in meaning from the limited warranty set
forth in Section 10.1. The Distributor shall indemnify and hold the Company
harmless against any claims, liability, costs, and expenses of any nature which
the Company may incur as a result of any such activities.
44. Modification of Products and Labeling. The Distributor shall not,
without the prior written consent of the Company in each instance obtained,
modify the Products or any part thereof or modify, remove, cover, or add to the
labels affixed by the Company to the Products if requested by the Distributor,
the Company shall affix foreign translations of labels to Product containers,
and the Distributor shall reimburse the Company for all reasonable expenses
incurred as part of such relabelling.
45. Patent Infringement. If a patent infringement action is commenced or
threatened against the Company as to one or more of the Products, and the
Company elects to discontinue the sale of any such Products in any part of the
Territory, the Distributor shall discontinue its efforts to sell such Products
in any such part of the Territory immediately upon receipt of written notice
thereof from the Company.
46. Termination.
46.1 The Company may terminate this Agreement by giving forty five (45) days
written notice in the following events: (a) Distributor has ceased to function
as a going concern or conduct its operations in the normal course of business as
a distributor, (b) Distributor enters into suspension of payments, or commences
or becomes the subject of, any action in relation to bankruptcy, insolvency,
reorganization, dissolution, or winding up; (c) Distributor has become
insolvent; (d) Distributor has made a general assignment for the benefit of
creditors; (e) Distributor has attempted to assign, convey, or otherwise
transfer in whole or in part any of Distributor's rights hereunder to any third
party without the Company's prior written consent based on Distributor's full,
true, and correct disclosure of the proposed transaction to the Company; (f) any
material change in the general management, ownership, or control including sale,
transfer, or relinquishment by Distributor of any substantial interest in the
ownership of the business to be carried on by Distributor under this Agreement,
unless such changes are approved in advance
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and in writing by the president of the Company; (g) conviction of Distributor or
any principal officer or manager of Distributor for any crime tending to affect
adversely the ownership or operation of the business; (h) Distributor provides
falsified data or information to the Company; or (i) Distributor breaches any of
the obligations under Sections 8.1 or 8.2 respecting Information or Section 9
respecting intellectual property. The Distributor hereby acknowledges that forty
five (45) days is a reasonable and adequate period of notice under the
circumstances, including the extent of the expenditures, investments, and
commitments made and to be made by Distributor under this Agreement
46.2 In the event either party commits a material breach of this Agreement
and such party fails to remedy such default within sixty (60) days of receipt of
written notice thereof from the opposite party, the party giving such notice
may, at any time thereafter upon written notice, terminate this Agreement. The
Distributor hereby acknowledges that sixty (60) days is a reasonable and
adequate period of notice under the circumstances, including the extent of the
expenditures, investments, and commitments made and to be made by Distributor
under this Agreement
46.3 Either party may terminate this Agreement without cause upon the
expiration of a ninety (90) day period after giving written notice thereof to
the other party. The Distributor hereby acknowledges that ninety (90) days is a
reasonable and adequate period of notice under the circumstances, including the
extent of the expenditures, investments, and commitments made and to be made by
Distributor under this Agreement
46.4 In the event of termination of this Agreement, whether upon the
expiration of the term of this Agreement or pursuant to the provisions of
Section 13.1, 13.2, or 13.3, the Company shall not be liable to the Distributor
for compensation, reimbursement, or damages on account of the loss of
prospective profits on anticipated sales, or on account of expenditures,
investments, leases, employee termination pay, or other commitments or expenses
relating to the business or goodwill or the Distributor.
46.5 Termination of this Agreement shall not relieve or release the
Distributor from any payments which the Distributor may owe the Company under
the terms of this Agreement, including without limitation, payments for Products
delivered to the distributor.
46.6 Acceptance by the Company of any orders from the Distributor after
termination of this Agreement shall not constitute a renewal of this Agreement
or a waiver of the right of the Company to treat this Agreement as terminated.
46.7 Notwithstanding anything contained herein to the contrary, Sections 8
and 9 of this Agreement shall survive termination of this Agreement and shall
remain in full force and effect
47. Relationship.
The Distributor is an independent contractor. Nothing herein shall
constitute the Distributor as an employee or agent of the Company, nor the legal
representative of the Company for any purpose or reason not set forth herein.
The Distributor does not have the authority to assume or create any obligation,
express or implied, on behalf of or in the name of the Company, or to bind the
Company in any manner whatsoever, except as authorized in writing
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by the Company. The Distributor shall be solely responsible for the operations
of its business and all costs incurred in such operations, solely responsible
for any injury, liabilities, or damage incurred in the conduct of its business,
for complying with all laws and regulations of the nation, state, and political
subdivision in which it transacts its business, and shall bear all expenses in
connection therewith. It is the express intent of the parties, pursuant to their
right to freedom of contract, that this Agreement shall govern the obligations
of each to the other and the right of each resulting from such relationship and
that no Ordinance, Regulation or any other law purporting to alter the
relationship between the Company and the Distributor, presently in force or
hereafter enacted, may apply to the rights and obligations of and between the
parties under this Agreement. The rights and obligations of the parties in the
event of termination of this Agreement have been separately bargained for, and
are intended by both parties to be in lieu of any rights or obligations arising
under any Ordinance, Regulation or any other law purporting to alter the
relationship of the parties.
48. Compliance with Law. The Distributor shall comply with all prevailing
laws and regulations of the Territory pertaining to the importation,
distribution, sales, promotion, and marketing of the Products in the Territory
and in any manner otherwise pertaining to performance by the Distributor of its
obligations under this Agreement. The Distributor shall accept and assume full
responsibility for any and all civil or criminal liabilities and costs that may
be assessed as a result of the Distributor's performance of Distributor's duties
under this Agreement, and shall hold harmless and defend the Company from and
against any and all fines, damages, levies, costs, and judgment which the
Company may be required to pay as a result of the Distributor's performance of
its duties thereunder in violation thereof.
49. Miscellaneous Provisions.
49.1 Controlling Law. This Agreement is made with reference to and shall be
construed in accordance with the laws of the England. The Parties acknowledge
and agree that this Agreement shall not be subject to the provisions of the
United Nations Convention on Contracts for the International Sale of Goods.
49.2 Arbitration. Any disputes or controversies arising under this Agreement
shall be determined by binding arbitration in accordance with the rules and
procedures for arbitration in England, which arbitration shall be conducted in
London England Each party shall bear its own costs of the arbitration and shall
pay one half cost of the costs of the establishment and operation of the
arbitration tribunal.
49.3 Notices. All notices, request, demands, and other communications given
under this Agreement shall be in English and shall be in writing and shall be
deemed to have been duly given at the time of delivery, if personally delivered,
or seventy-two (72) hours after delivery to an appropriate courier service and
addressed to the parties at the addresses set forth beneath their respective
signatures or at such other address as a party may designate at any time in
writing by notice to the other in accordance with this Subsection 16.3.
49.4 Waiver and Modification. The failure of either party at any time to
require strict performance of any provision of this Agreement shall not in any
manner affect the right of such party at a later time to enforce the same. No
waiver by either party of the breach of any term or
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covenant contained in this Agreement shall be deemed to be a release or affect
any liability resulting from such breach. No waiver of any nature, whether by
conduct, course of dealing, or otherwise, in any one or more instances shall be
deemed to be or construed as a continuing waiver of any such condition or
breach, or as a waiver of any other condition or of any other breach of any
other term or covenant of this Agreement.
49.5 Severability. If any provision of this Agreement is held and determined
to be invalid by any arbitrator or court interpreting such provision, such
arbitrator or court shall be entitled to modify or otherwise reduce the scope or
effect of such offending provision, and to enforce such provision as so
modified, provided that such modification does not materially modify the intent
of the parties in entering into this Agreement. If any provision of this
Agreement cannot be so modified without offending the intent of the parties,
such provision shall be deemed to be null and void, and the remaining provisions
of this Agreement shall remain in full], force and effect as if such invalid
provision had not been included in the Agreement
49.6 Successors in Interest. This Agreement shall be binding upon and inure
to the benefit of the successors, heirs, assigns, and personal representatives
of the parties.
49.7 Assignment. The Distributor may not assign or sublicense any of its
rights or obligations under this Agreement, nor shall the Distributor appoint or
designate any subdistributor of the Products, without the prior written consent
of the Company, which consent may be granted or withheld for any reason or for
no reason in the sole and exclusive judgment of the Company. Any attempted
assignment, appointment, or designation without the prior written consent of the
Company shall be null and void.
49.8 Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the subject matter of this Agreement. There are no
representations, warranties, understandings, or agreements other than those
expressly set forth herein. Time is expressly declared to be of the essence of
this Agreement
49.9 Execution by Counterpart. Agreement may be executed separately or
independently in any number of counterparts, each and all of which together
shall be deemed to have been executed simultaneously and for all purposes to be
one agreement
49.10 Captions. The respective captions of the Sections are inserted for
convenience of reference only and shall not be deemed to modify or otherwise
affect in any respect any of the provisions hereof.
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49.11 Attorneys' Fees. In the event either party retains an attorney to
enforce any of the provisions of this Agreement, the substantially prevailing
party shall be entitled to reasonable attorneys' fees from the other party,
including fees incurred in both trial or appellate courts, or fees incurred
without suit, and all court and accounting costs.
DATED the day and year first above written.
PURE TECHNOLOGIES INC.
Per: "▇. ▇▇▇▇▇▇▇"
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Address: #1050, ▇▇▇ - ▇▇ ▇▇ ▇▇▇▇▇▇ ▇.▇.
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FUGRO LIMITED
Per: "▇▇▇▇▇ ▇▇▇▇▇▇"
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Address: #18 ▇▇▇▇▇▇▇▇ ▇▇▇▇
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