MARKETING / MANUFACTURING AGREEMENT
This
Agreement is made and entered into this 12th
day of
March, 2004, to be effective March 1, 2004, between Bio Solutions Manufacturing,
Inc. (BSMI), whose address is ▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and
Bio-Solutions Franchise Corp. (BSFC) whose address is ▇▇▇▇ ▇▇▇▇▇ ▇▇.,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WHEREAS,
BSMI is engaged in the business of production, testing, and research and
development of certain products.
WHEREAS
BSFC is in the business of sales and marketing environmentally related products
and desires to render services to BSMI with exclusive marketing rights and
full
assignments of all proprietary rights with full assignment of all product rights
to BSFC under the following terms and conditions.
1. TERMS:
This
agreement shall be effective commencing on the effective date of this Agreement.
This agreement shall remain in effect for a term of ten (10) years, commencing
on the date hereof, and to be extended year-to-year thereafter at the election
of mutual consent of both parties.
2. BSMI
AGREES TO THE FOLLOWING:
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a)
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Supply
its products to BSFC exclusively on a timely basis by drop shipment
to
wherever ordered and directed in packaging specified, at a cost reasonably
acceptable to both parties;
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b)
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Continue
to develop new products and spend the majority of its efforts in
research
and development, testing, field trials and technical
support;
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c)
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On
a continuing basis the company will recruit and train qualified college
graduates and industry standouts for research and development and
technical support;
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d)
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Acquire
(where possible) other Environmental Testing Labs in strategic
locations;
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e)
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Provide
training for BSFC and its personnel and co-operate and participate
in
training of Franchisees, Distributors and Dealers as
required;
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f)
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Supply
its new products to BSFC exclusively with all new product information,
field trial results and lab tests in writing on a regular basis and
provide technical information, franchise training, field support
and
product support as needed by BSFC;
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g)
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Maintain
an inventory of product, product components, fuel generators, water
and
any and all other material or
components;
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h)
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Share
equally the actual cost of items that promote the general good of
both
companies including but not limited to advertising, field trials,
product
samples, and related activities;
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i)
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Provide
office space for two (2) employees of BSFC in the factory, establish
new
phone lines as needed (existing lines are for BSFC), and share equally
the
cost of office support staff whose work duties benefit both
parties.
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3. BSFC
AGREES TO THE FOLLOWING:
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a)
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Establish
and train sales and marketing network of Franchisee, Distributor
and
Dealer owners for national and international
sales;
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b)
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Establish
the financial criteria and perform “due diligence” for said Franchisee,
Distributor and Dealer Owners;
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c)
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Establish
and promote an advertising program to support the Franchisee, Distributor
and Dealer network on a regional and national basis as
necessary;
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d)
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Support
BSMI in providing technical
support.
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4. PAYMENT
TERMS / CONDITIONS: BSFC
agrees to pay BSMI as follows for product orders:
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a)
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Net
thirty (30) days upon receipt of order for all orders in which BSFC
has
received payment. BSMI and BSFC shall share equally in any non-payment
of
orders by Franchisees, Dealers or Distributors.
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5. SUPPLIES
AND EQUIPMENT:
BSFC
shall be responsible for furnishing such supplies and equipment that may be
required to perform the sales required under this agreement. BSFC shall be
responsible for, and pay for, reasonable and appropriate promotional and
marketing advertisement and the like, and to furnish said materials to
Franchisee, Distributor or Dealer at BSFC’s cost and, in some cases, co-operate
in publication advertising with Franchisee, Distributor or
Dealer.
6. COMPENSATION:
Compensation to BSFC shall be the difference between the price of BSMI products
to BSFC and the selling price of the products and services to the BSFC’s
Customers.
The
initial transfer pricing and provisions for future adjustments shall be as
provided in Appendix A.
7. INSURANCE:
BSMI
shall maintain a policy of liability insurance to cover any and all claims
arising out of the products there under, or performed pursuant to this agreement
and name BSFC and its Franchisees, Dealers and Distributors as additional
insured’s.
8. WARRANTIES:
BSMI
shall be the sole warrantor / guarantor of any and all of BSMI’s products sold
by BSFC. BSMI agrees to indemnify BSFC against any and all claims, causes of
action and the like, including attorney’s fees and court costs arising from any
defects of BSMI products or damages from use of such products.
9. ASSIGNMENTS:
None of
this Agreement nor any duties or obligations hereunder shall be assignable
by
BSMI or BSFC without the express prior written consent of the non-assigning
party. Such express prior written consent shall not be unreasonably withheld.
In
the event of an assignment deemed agreeable, the assignee shall agree in writing
to assume, perform and be bound by the terms of this Agreement before said
assignee shall commence any work or perform any duties pursuant to this
Agreement.
10. SUCCESSORS
IN INTEREST:
Subject
to the provisions regarding assignment, this Agreement shall be binding upon
and
ensure benefit of the respective parties hereto, and their heirs, executors,
administrators, personal representatives, assigns and successors in
interest.
11. ATTORNEY’S
FEES:
If
any
action, at law or in equity is brought by either party hereto against the other
party hereto, or the Franchisees, Dealer Agents, Agents, Independent Contractors
or Employees to enforce or interpret any of the provisions of this Agreement,
and the party bringing the action shall prevail in its action, then the party
bringing the action shall be entitled to its’ reasonable attorney fees, plus any
other relief that may be available to the party bringing the action or awarded
by any court.
12. AMENDMENTS:
This
Agreement may be amended only by mutual agreement of the parties hereto, and
only if said amendment is made in writing, executed with the same formality
as
this Agreement and said amendment is attached to this Agreement and incorporated
herein by reference.
13. GOVERNING
LAW:
The
validity of this Agreement and any of its terms or provisions, as well as the
rights and duties of the parties to this Agreement shall be governed in
accordance with the laws of the State of Mississippi.
14. LEGAL
CONSTRUCTION:
In case
any one or more of the provisions contained in this Agreement shall, for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceable shall not effect any other provisions
of
this Agreement. This Agreement shall be construed as if the invalid, illegal
or
unenforceable provision had never been contained in it.
15. WAIVER:
The
waiver by either party, or any breach of any provision of this Agreement, shall
not operate or be construed as a waiver of any subsequent breach of that
provision or any other provision of this Agreement. Failure or delay by either
party to enforce compliance with any term or condition of this Agreement shall
not constitute a waiver of such term or condition unless specified waived in
writing.
16. MERGER:
This
Agreement contains the entire and complete Agreement of the parties as to the
within subject matter. All prior agreements between the parties, whether oral
or
in writing, as to the within subject matter are hereafter specifically null
and
void, and shall be invalid and without binding effect.
17. THIS
agreement may be executed in any number of counterparts, each of which when
so
executed and delivered shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same
instrument.
| BY /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, President | |||
BIO
SOLUTIONS FRANCHISE CORP
| BY /s/ ▇▇▇▇▇ ▇▇▇▇ | |||
| ▇▇▇▇▇ ▇▇▇▇, President | |||
APPENDIX
A-
BSFC/BSMI
PRICING
It
is
agreed between the parties as follows:
1. Gross
profits on the sale of all BSMI products shall be shared equally-BSMI 50%;
and,
BSFC-50%. Gross profit is defined as the difference between the “Base Cost” and
“BSFC Sales Price.”
2. BSFC
Sales Price is defined as the price at which BSFC sells to any third party
and
collects payment from any third party, including but not limited to, all
wholesale or retail sales, to franchisees or distributors, and whether domestic
or international sales. The parties understand and agree that the price from
BSMI to BSFC for the same product or products may vary and such prices will
be
set by BSFC in its sole discretion as long as there is a gross
profit.
3. Base
Cost
is defined as the actual cost of ingredients for the product plus an overhead
allowance for BSMI to be set at a minimum of 20% and not to exceed 100%, based
on actual overhead expenses incurred and experienced by BSMI. Additionally,
there shall be an overhead allowance for BSFC that shall be deemed to be
one-half of the amount allocated for overhead for BSMI. Overhead for BSMI shall
be divided among the various products based on percentage of sales during the
preceding full calendar year. For example, if a product represented 15% of
sales
then 15% of the overhead will be allocated to that product, subject to the
overhead allocation minimum of 20% and maximum of 100%. Prices for future
products and/or changes to existing products shall be set based on this formula.
Should this formula prove to be unbalanced and unfair to either company at
the
fiscal year end- June 30, 2005, a new formula will be
negotiated.
4. Base
Manufacturing Cost shall be calculated annually based on the audit of BSMI
and
adjustments in Base Manufacturing Cost made accordingly. Any overcharges by
BSMI
shall be repaid to BSFC within 30 days of the completion of the audit. During
the first fiscal year of this agreement, as determined by BSMI’s fiscal year
end, the prices set forth below have been mutually agreed upon according to
the
above stated formula;
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Product
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Transfer
Price
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BP-710
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$
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15.95
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BP-310
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$
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17.98
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BP-910
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$
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11.04
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Bio
Catalyst
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$
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13.27
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Bio
Care G
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$
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9.42
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Floor
Soap
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$
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2.29
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Hood
& Stack
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$
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20.52
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Wheels
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$
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20.52
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DePlugger
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$
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9.45
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Lift
Station Extract
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$
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7.54
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Buffer
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$
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2.88
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BP-101
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$
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6.77
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BP-102
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$
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20.83
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Bio
Care H2S
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$
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5.53
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