EXHIBIT 10.38
FCI ENVIRONMENTAL, INC.
EXCLUSIVE DISTRIBUTOR AGREEMENT
(EXPORT)
THIS AGREEMENT, made and entered into this the ____ day of ____________, 1995 by
and between FCI Environmental, Inc., a corporation organized and existing under
the laws of the State of Nevada, having its principal place of business at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ (hereinafter referred to as
the "Company") and _____________________________, a _______________ organized
and existing under the laws of ________________, and having its principal place
of business at ____________________________________________________________
__________________________________ (hereinafter referred to as the
"Distributor").
W I T N E S S E T H
WHEREAS, the Company is engaged in the design, manufacture, sale, license
and distribution of certain products listed in Exhibit A attached hereto and
made a part hereof (hereinafter referred to as the "Products"); and
WHEREAS, the Company desires to arrange for the purchase of the Products by
the Distributor; and
WHEREAS, the Distributor desires to purchase and resell the Company's
Products;
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. DEFINITIONS
1.1 "Effective Date", shall mean the date of this Agreement as written above.
1.2 "Products", shall mean the Environmental products manufactured by the
Company and also the accessories and parts, all of which are described more
specifically in Exhibit A attached to this Agreement.
1.3 "Territory" shall be as specified in Exhibit B.
2. APPOINTMENT
2.1 The Company hereby appoints the Distributor and the Distributor hereby
accepts appointment as the Company's exclusive authorized Distributor for
the Products listed in Exhibit A (hereinafter referred to as the
"Products"), in the Territory set forth in Exhibit B (hereinafter referred
to as the "Territory").
2.2 During the term of this Agreement, the Distributor shall not offer, deliver
or sell the Products to any persons for use, directly or indirectly,
outside of the Territory. The Distributor will promptly forward to the
company all inquiries from outside the Territory for Products and the
Distributor shall not be entitled to any compensation therefor.
2.3 The relationship of the Distributor to the Company is that of an
independent contractor and under no circumstances shall the distributor be
deemed to be a partner or employee of the Company.
2.4 The Distributor has no authority to commit the Company in any matter
whatsoever without the prior written consent of the Company.
2.5 The Distributor has no authority to enter into, vary, alter, enlarge or
limit orders or agreements of sale, to make representations, warrantees or
guarantees or adjustments in accounts or to authorize the return of
products, unless specifically agreed in writing with the Company.
2.6 The Distributor shall obtain no ownership rights to any of the Company, or
its parent, FiberChem, Inc.'s technology or proprietary information, as set
forth in Section 8 herein.
3. RESPONSIBILITIES OF THE COMPANY
3.1 To provide the Distributor with Quality Products listed in Exhibit A in a
timely manner.
3.2 To provide the Distributor with sales and technical information and
material regarding the Products, including available sales promotion
literature or brochures.
3.3 To provide reasonable sales and technical assistance, as determined by the
Company, including personnel representation at major trade shows in the
Territory attended by the Distributor and problem solving.
3.4 To inform the Distributors of specification or design changes.
3.5 To provide warranty parts for instruments still in warranty in the
Territory. Such parts are billed to the Distributor until the defective
part is returned to the Company when a credit will be issued.
3.6 To provide reasonable group training at the Company's premises for the
Distributor's personnel at no cost to the Distributor. Travel and
accommodation expenses to be paid by the Distributor.
4. RESPONSIBILITY OF THE DISTRIBUTOR
4.1 To actively promote the sale of the Products within the Territory. Such
promotions shall include, but not be limited to sales calls,
demonstrations, seminars and exhibitions.
4.2 To solicit orders for and sell the Products in the Territory.
4.3 To meet or exceed any annual sales volume targets that are mutually agreed
upon between the Company and the Distributor.
4.4 The Distributor will purchase and maintain demonstration inventory
appropriate to achieving the annual sales targets mutually agreed upon
excepting that the minimum demonstration inventory shall be as specified in
Exhibit E.
4.5 To provide the Company an updated, quarterly forecast of potential
customers for Products, due during the first week of each calendar quarter.
In addition, an annual forecast is due during the first week of July.
Failure by the Distributor to furnish an acceptable Performance Plan shall
be deemed to be a material breach of this Agreement.
4.6 To properly install Products and provide warranty service and user paid
services for the Products sold.
4.7 To send qualified sales and service engineers to the Company for product
and service training at least once in the first year of this Agreement, and
then at intervals necessary to maintain the promotion and reputation of the
Company in the Territory.
4.8 The Distributor will not make any modifications to the Products without the
written approval of the Company.
4.9 Refer to the Company all inquiries received by the Distributor for the sale
of the Products outside the Territory and further, refer to the Company
inquiries received by the Distributor from others than customers for the
sale of the Products in the Territory.
4.10 Not to sell the Products to any party known or reasonably believed to have
the aim to export Products after delivery to an area outside the Territory
unless the Distributor has received the prior written consent of the
Company.
4.11 Keep the Distributor's account with the Company current at all times.
4.12 Sell the Products solely under the Company's name, and the Distributor
shall not remove, cover or destroy any Company names or labels.
4.13 Devote its Best Efforts to assist the Company in obtaining any
certification of the Products within the Territory by any government agency
or other certifying body within the Territory. The Distributor shall
provide this assistance at no cost to the Company. Any certification
granted shall be solely in the name of the Company, and the Distributor
shall use its Best Efforts to protect the Company's sole and unencumbered
claim to the certification.
5. PURCHASE OF PRODUCTS
5.1 The Distributor shall purchase the Products for its own account and risk.
5.2 The Distributor shall not sell, market, distribute or promote any products
which are similar to, or in competition with the Company's Products,
without the prior written agreement of the Company.
5.3 The Company reserves the right, without prior notice and without liability,
to modify, alter, improve, change the design and/or specifications as well
as to discontinue the manufacture or sale of any product or products.
However the Company will do everything possible to give the Distributor the
maximum feasible amount of notice concerning any change.
6. WARRANTY
6.1 The Company shall warranty that the Products under normal use and service
are free from defects in workmanship and materials and meet the Products'
specifications set forth by the Company.
6.2 The Company shall warrant the Products as set forth in Section 6.1 for one
(1) year from the date of delivery of the Products to the Distributor's end
users, but not longer than fifteen (15) months after the date of the
Company's shipping invoice to the Distributor, whichever applies first,
with the exceptions listed in Exhibit C. In the event the Distributor
finds any defective Products which do not meet the aforesaid warranty, it
shall give immediate written notice to that effect to the Company.
6.3 The Company shall maintain or cause to make available a reasonable amount
of inventory of spare parts for Products sold to the Distributor for a
minimum of five (5) years after the Company ceases to manufacture such
Products so that the Company may provide the Distributor with such parts
when the Distributor places its purchase orders for such spare parts.
6.4 The Company's sole obligation and liability hereunder shall be limited to
repair or replacement, at the Company's option, of any article found to be
defective during the warranty period. The Distributor will be responsible
for all labor.
6.5 Immediately upon receipt of a Product from the Company, the Distributor
shall notify the Company in writing of the existence of any defect(s) in
such Product. Upon receipt of a Product containing a defect covered by the
foregoing warranty or receipt of customer notice of a defect covered by the
foregoing warranty, the Distributor shall notify the Company in writing.
Products shall not be returned to the Company unless and until the Company
has authorized such return and has provided shipping instructions. If such
authorization is given, transportation costs shall be paid by the Company.
The failure to obtain such authorization prior to return shall render the
Distributor liable for all such transportation costs and any additional
expenses incurred by the Company in connection with the handling of such
returned Product.
6.6 THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED
OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED. THE
COMPANY'S LIABILITY UNDER THIS WARRANTY IS EXPRESSLY LIMITED TO THE
OBLIGATIONS EXPRESSLY ASSUMED BY THE COMPANY HEREIN, AND SPECIFIED IN THE
SAID COMPANY'S TERMS AND CONDITIONS OF SALE. IN NO EVENT SHALL THE COMPANY
BE LIABLE FOR SPECIFIC, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
THE COMPANY MAKES NO WARRANTY AND SHALL HAVE NO LIABILITY IN CONNECTION
WITH THE INCORPORATION OF THE PRODUCTS INTO OR WITH PRODUCTS OR EQUIPMENT
SOLD BY OTHERS. THE COMPANY'S LIABILITY SHALL NOT IN ANY CASE EXCEED THE
PRICE PAID BY DISTRIBUTOR FOR THE PRODUCTS.
7. TRADEMARKS
7.1 The Distributor shall not during the term of this Agreement or thereafter,
acquire through performance of its duties under this Agreement the
ownership of the trademarks (the "Trademarks") of the Company, whether or
not such Trademarks be registered, nor shall it dispute the validity
thereof. Furthermore, the Distributor shall not use for its own account
any of the Trademarks or trademarks confusingly similar thereto.
7.2 The Distributor shall not at any time register, or cause to be registered,
in its name or in the name of another, or use, or employ any of the
Trademarks of the Company during and after the term of this Agreement. The
Distributor shall report to the Company any infringement against or
imitations of the Trademarks which comes to its attention and shall assist
in protecting the Company's rights in and to the Trademarks.
7.3 The Distributor shall not use or publish any Company trade name, product
name, or model number or trademark, except in association with the
solicitation of orders or promotion of sales of the Products, and then only
on signage, letterheads, business cards, price lists, catalogs,
advertising, telephone listings and vehicles used exclusively by the
Distributor. Any such use or publication shall be in accordance with the
standards, as may be set forth by the Company from time to time, and shall
be discontinued upon termination or expiration of this Agreement.
7.4 Upon termination or expiration of this Agreement, Distributor shall
immediately cease representing itself as a Distributor of the Company,
shall cease all use of the aforesaid trade name or trademarks, shall not
thereafter use the aforesaid trademarks, product names, model numbers and
any trademark word, expression, design or symbol which is confusingly
similar thereto, and shall not thereafter act in any way which might
indicate, directly or by inference, that any relationship exists between
the Company and the Distributor. Upon termination or expiration of this
Agreement, the Distributor shall not take any action reflecting discredit
upon the Company or Products manufactured or sold by the Company. Nothing
herein shall abrogate or invalidate any other trademark or trade name
agreements in effect between the Company and the Distributor. This clause
shall survive the expiration, cancellation or termination of this
Agreement.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 The Distributor acknowledges that the patents, technology and know-how use
that are embodied in the Products remain the sole property of the Company.
8.2 Any improvement, know-how, technology, patents, utility models, designs,
techniques, inventions, data, trade secrets, or other industrial
intellectual property rights in relation to the Products developed by the
Company shall respectively remain the property of the Company.
8.3 The Distributor will not infringe or dispute any of the Company's patents
or claims therein.
8.4 In the event that the Distributor finds that any third party infringes the
Company's patents, the Distributor will assist in protecting the Company's
right to its patents.
9. PRICE AND PAYMENT
9.1 The price of Products shall be Ex-factory or F.O.B. Las Vegas, Nevada and
the currency adopted shall be in the U.S. Dollar. The Distributor discount
rate shall be as listed in Exhibit A.
9.2 The prices of the Products are subject to change by the Company with three
(3) months advance notice in writing to the Distributor.
9.3 The Distributor shall be responsible at its own account for freight, import
duty, customs clearance, delivery charges and insurance to end user's
premises.
9.4 All sales to the Distributor shall require payment to the Company in U.S.
Dollars under the terms (the "Terms") listed in Exhibit D. These Terms may
be temporarily modified by mutual agreement between the Distributor and the
Company at any time and may become the Terms.
9.5 Failure of the Distributor to comply with the Terms or amended terms shall
be deemed a material breach of contract which may be cause for immediate
termination of this Agreement.
10. PURCHASE ORDERS
10.1 Distributor will submit purchase orders on separate Purchase Order forms.
Each Purchase Order shall specify the quantity, items and the requested
delivery dates. Purchase Orders may include end-user information and
additional terms relating to the purchase, shipment and other conditions if
previously agreed upon between Distributor and the Company.
10.2 The Company shall acknowledge Purchase Orders within one (1) week after
receipt by issuing Purchase Order confirmation. Purchase Orders so
confirmed shall be binding on Distributor and
the Company and may be canceled by Distributor if the Company defaults in its
execution thereof.
10.3 The Company shall, subject to the provisions of this Agreement, unless
otherwise agreed in writing, sell and ship to Distributor any of Products
in Exhibit A for which orders have been accepted by the Company.
10.4 Orders may be issued by the Distributor using the Distributor's standard
purchase order form, which may be acknowledged by the Company, using the
Company's standard sales order acknowledgment form. However, it is
understood and agreed that such forms of Purchase Orders and sales order
acknowledgments are used solely for the convenience of the parties in
setting the quantity of Products to be purchased under the terms of this
Agreement and the delivery schedule thereof. Any provision, term or
condition of such purchase orders or sales order acknowledgments which is
inconsistent with or different from any provision, term or condition
contained herein, including all Exhibits hereof, shall be of no legal
effect whatsoever and shall not be binding upon the parties hereto, unless
such provision, term or condition is specifically accepted or approved in
writing by the parties hereto.
10.5 In the event of a conflict or inconsistency between these terms and
conditions and the terms and conditions set forth in the Company's General
Terms and Conditions, then such conflict or inconsistency shall be resolved
by giving preference to the terms and conditions set forth herein.
10.6 No provision of this Agreement shall be interpreted as obligating the
Company to accept any order received from Distributor. The Company may, in
its sole discretion, accept or reject any order. No order shall be binding
upon the Company unless and until accepted by the Company in writing.
10.7 The Distributor shall have no authority to accept orders on behalf of the
Company or to commit the Company to any undertaking including, but not
limited to, the sale or delivery of any Product.
11. CONFIDENTIALITY OF PROPRIETARY INFORMATION.
All information relating to Propriety information (including, but not
limited to, methods of manufacture, trade secrets, processes, formulas,
software, firmware, designs, schematics, drawings, marketing and sales data,
price data, cost data, licenses, distribution contracts, performance data,
customer lists, vendor lists, principal lists, patent applications, test data,
financial data, or any other information of the business affairs of the Company)
referred to in this Agreement as "Know-How", supplied to the Distributor
verbally, in writing, by model, or in any other form by the Company, is solely
for the use of the Distributor under this Agreement and remains the property of
the Company. Know-How may or may not be marked with a legend stating it is
proprietary Know-How and such method of disclosure shall not limit in any way
Distributor's obligation to protect the Company's Know-How, nor shall the method
of disclosure diminish in any way, the Company's ability and right to enforce
the terms of this Agreement. The Distributor shall use its "Best Efforts" to
protect the Proprietary information and Know-How of the Company. After
termination, expiration or cancellation of this Agreement, the Distributor
shall, if the Company so requests in writing, promptly return to the Company or
its designee all Proprietary information and Know-How, including all copies.
The Distributor agrees: 1) not to use or permit the use of such Proprietary
information and Know-How, except in accordance with the terms of this Agreement;
2) not to disclose such Proprietary information and Know-How to others
(including affiliates of the Distributor); 3) not to use, permit the use of, or
disclose to others (including affiliates of the Distributor) such Proprietary
information and Know-How after termination of the Agreement; 4) not to disclose
Proprietary information or Know-How to Distributor's employees or agents, except
on a "need to know" basis and only after said employee or agent has agreed in
writing not to disclose said Proprietary information and Know-How to others in
any fashion whatsoever or for any reason whatsoever. This clause shall survive
the expiration, termination or cancellation of this Agreement.
12. FORCE MAJEURE
No liability under this agreement shall result to either party from any
delay in performance when caused by circumstances reasonably beyond the control
and without the fault or negligence of such party including, but not limited to,
acts of God, fire, flood, war, riots, governmental regulations, labor disputes,
vendor delays, embargoes or other acts by any government, or shortage of, or
inability to, obtain materials, equipment or transportation. In the event of a
shortage of Products, the Company reserves the right to allocate its production
among its customers, including Distributors, on such basis as the Company deems
equitable or desirable.
13. TERM AND TERMINATION
13.1 This Agreement shall become effective on the date first above written and
shall remain in full force and effect for a period of two years.
13.2 This Agreement shall be automatically renewed for another one (1) year
period and thereafter, unless either party gives to the other party a
notice of such party's desire not to renew this Agreement at least ninety
(90) days before the end of the initial term and any extended term then in
effect.
13.3 This Agreement shall automatically terminate upon occurrence of the
following events.
a. If at any time either party files a petition for insolvency, bankruptcy
or is adjudicated bankrupt, or takes advantage of any insolvency acts or
assignments for the benefit of creditors, or undergoes a substantial or
significant change in ownership, the other party shall have the right to
terminate this Agreement immediately without notice. At no time or for
any reason should this Agreement be considered an asset of the insolvent
party.
b. Any breach by the Distributor of its obligations under Article 4 of this
Agreement.
13.4 Both parties have the right to terminate this Agreement upon ninety (90)
days advance notice in writing properly served in the event that the other
party cannot or does not fulfill any of its obligations under this
Agreement.
13.5 Upon termination of this Agreement for any cause, the Distributor shall
immediately cease to sell, distribute or promote the Products with the
exception of then existing inventory, and shall transfer and hand over to
the Company in accordance with the Company's instructions, confidential
information, and any and all other property of the Company in the
possession or control of the Distributor and immediately pay to the Company
all outstanding monies.
13.6 Following the termination of this Agreement the Distributor shall not,
directly or indirectly, sell or otherwise distribute competing products
with trademarks similar to or apt to be confused with the Trademarks.
13.7 Upon termination of this Agreement the Distributor shall not be entitled to
any damages or compensation of any type whatsoever.
14. NOTICES
14.1 All notifications, reports, request for changes or additions to this
Agreement shall be in writing and addressed as follows:
THE COMPANY: FCI Environmental, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: _________________
THE DISTRIBUTOR:___________________________
___________________________
___________________________
ATTENTION: ________________
14.2 Addresses may be modified at any time by written notification from one
party to the other party.
14.3 Any such notice or other communication shall be deemed given and effective
when delivered personally or by telex or telecopier, two (2) days after
mailing, if sent by express courier service, or five (5) days after the
postmark date if mailed by certified or registered airmail, postage
prepaid, return receipt requested, addressed to a party as stated above.
15. ARBITRATION
15.1 Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, will be finally settled by arbitration in Las Vegas,
Nevada, U.S.A., in accordance with the then current rules of the American
Arbitration Association. Any award shall be final, binding and conclusive
upon the parties and a judgment upon the award rendered thereon may be
entered in any court of competent jurisdiction. Unless otherwise ordered
by the arbitrators, each party to such arbitration shall bear its own costs
and expenses of such arbitration, including its experts, evidence and legal
fees and expenses.
16. INSPECTION AND CONSULTATION
16.1 The Company reserves the right to visit the Territory for the purposes of
inspection and consultation to which end the Distributor agrees to place at
the disposal of the Company full information with regard to the
Distributor's activities on behalf of the Company, and full access to the
Distributor's facilities and sales offices during regular business hours.
17. GENERAL
17.1 SEVERABILITY. If any provision herein shall be held to be invalid or
unenforceable for any reason, such provisions shall, to the extent of such
invalidity or unenforceability, be severed, but without in any way
affecting the remainder of such provision contained herein, all of which
shall continue in full force and effect.
17.2 ASSIGNMENT. Neither party shall assign any of its obligations under this
Agreement without the prior written consent of the other, and any attempted
assignment by such party in contravention hereof shall be void. This
Agreement shall be binding upon and shall inure for the benefit of the
successors of the parties hereto.
17.3 GOVERNING LAW. This Agreement and all disputes and suits related thereto
shall be governed by and construed and interpreted in accordance with the
internal domestic laws of the State of Nevada, U.S.A., applicable to
contracts entered into and to be performed within said State.
17.4 COMPLETE AGREEMENT; AMENDMENT. This Agreement is intended to be the sole
and complete statement of the obligations of the parties as to its subject
matter and supersedes all prior oral and written and all contemporaneous
oral understandings, negotiations, commitments and proposals
of the parties as to its subject matter . Any changes hereto must be made
in writing and signed by both parties.
17.5 NO WAIVER. No delay or failure by either party to exercise or enforce at
any time any right or provision of this Agreement shall be considered a
waiver thereof or of such party's right thereafter to exercise or enforce
each and every right and provision of this Agreement. A waiver to be valid
shall be in writing, but need not be supported by consideration.
17.6 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall
constitute but one and the same instrument.
17.7 RELATIONSHIP OF THE PARTIES. The relationship between the parties shall be
that of owner and contractor; neither party hereto, its agents and
employees, shall under no circumstances, be deemed agents or
representatives of the other party hereto and neither party shall have any
right to enter into any contracts or commitments in the name of or on
behalf of the other party hereto in any respect whatsoever.
17.8 MISCELLANEOUS. Time and due payments shall be of the essence of this
Agreement and of each and every part hereof.
17.9 PUBLIC ANNOUNCEMENT. Upon signing of this Agreement, the parties
shall jointly draft, approve and issue any public announcement of this
Agreement which the parties may, by mutual consent, deem appropriate.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their dully authorized representatives as of the date first above
written.
FCI ENVIRONMENTAL, INC. ________________________________
_______________________ _____ ________________________________
Title:_______________________ Title:____________________________
Date:_______________________ Date:____________________________
EXHIBIT A
PRODUCTS, PRICES AND DISCOUNT RATES
U.S. LIST
---------
FCI ENVIRONMENTAL PETROSENSE-Registered Trademark- PORTABLE PHA-100 $6900.00
FCI ENVIRONMENTAL CONTINUOUS MONITORING SYSTEM CMS-5000
(LOGGER AND ALARM - requires 1 to 16 DHP-200 probes) 9000.00
DIGITAL HYDROCARBON PROBE DHP-200 4000.00
CALIBRATION REFILL KITS 250.00
PHA-100 AND CMS-5000 ACCESSORIES AND SUPPLIES per published
price lists
EXHIBIT B
THE "TERRITORY" IS: ____________________________
EXHIBIT C
EXCEPTIONS TO WARRANTY
The Warranty described in Section 6 of this Agreement applies to Products
except:
Consumables, calibration standards, batteries, syringes, vials, tubes, septa and
the like are specifically excluded.
Misuse, abuse, neglect, accident, negligence, improper handling are specifically
excluded and will void the Warranty.
Use of other than approved calibration standards will void the Warranty.
Failure to clean, calibrate and otherwise maintain the Products in accordance
with the Specifications will void the Warranty.
Use of the Products for other than the intended purposes will void the Warranty.
Service by other than authorized personnel will void the Warranty.
EXHIBIT D
PAYMENT TERMS
Irrevocable Letter of Credit confirmed by a well known U.S. bank; drafts payable
60 days from presentation of proof of shipment, F.O.B. Las Vegas, Nevada, U.S.A.
EXHIBIT E
MINIMUM PURCHASE ORDERS
Initial demonstration purchase (minimum):
___ PHA-100
___ CMS-5000 with alarm and 4 probes
___ DHP-200 probe
