1
Exhibit 10.2
DISTRIBUTION AGREEMENT
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THIS AGREEMENT is made this day of March 1997; by and
between AGROTECH 2000 SL, a company organized with limited
liability under the laws of Spain whose registered office is
at C/Acanto 22, 13th Floor 1; 28045 Madrid ("Agrotech"), and
Conserver Corporation of America, a corporation organized
under the laws of the State of Delaware having a place of
business at 0000 XxXxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxx 00000
("CCA").
WHEREAS, Agrotech has developed or acquired the rights to a
group of products known as Conserver 21 which extends the
post-harvest life of fruits, vegetables and flowers and
similarly extends the edible life of fish, meat and poultry;
WHEREAS, Agrotech wishes to market, sell and otherwise
commercially exploit Conserver 21 in the United States of
America and Canada (the "Territory") through a suitable
distributor based in the Territory;
WHEREAS CCA is capable of marketing, selling and otherwise
commercially exploiting Conserver 21 in the Territory; and
WHEREAS, Agrotech and CCA have agreed that Agrotech will grant
to CCA, and CCA will accept, the right to market, sell and
otherwise commercially exploit Conserver 21 products in the
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Territory, and Agrotech and CCA wish to put the terms of that agreement in
writing;
NOW, THEREFORE, in consideration of the mutual understandings and agreements
contained herein, the parties hereto hereby agree as follows:
1. GRANT OF RIGHTS
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(a) Agrotech hereby grants to CCA the exclusive right to market, sell,
distribute and otherwise commercially exploit the Product (as
hereinafter defined) in the Territory, subject to the terms and
conditions of this Agreement, it being understood and agreed that such
right shall permit CCA to use the Product outside the Territory in
conjunction with the shipment of goods to the Territory under the
direction of CCA.
(b) Agrotech hereby further grants to CCA the option to market, sell,
distribute and otherwise commercially exploit the Product in each
nationally defined jurisdiction outside the Territory, which option
may be exercised at any time during the Initial Term or any extension
of this Agreement, provided that if CCA shall not have exercised an
option for any such jurisdiction and Agrotech shall receive an offer
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therefor from a third party, CCA shall have a right of first refusal
with respect to such jurisdiction, such right to be exercised within
sixty (60) days of receipt of notice from Agrotech in accordance with
paragraph 15 of this Agreement of such third party offer by CCA
proposing to Agrotech a commercially reasonable business plan for such
jurisdiction. Following the exercise of such option or right of first
refusal, Agrotech and CCA shall enter into a distribution agreement for
such territory substantially similar in form and substance to this
Agreement, provided that subsequent to this Agreement, loans (and the
terms thereof) from CCA to Agrotech during the Initial Term of this
Agreement and any extension hereto shall be negotiated in good faith by
the parties hereto when demand for the Product by CCA for use in the
Territory or in other jurisdictions in accordance with this paragraph
creates a necessity for the expansion of Agrotech's plant and
facilities, rather than necessarily being a provision of such future
distribution agreements.
(c) For the purposes of this Agreement, the "Product(s)" shall mean
Conserver 21 as it currently exists (regardless of the name, symbol or
logo, if any, with which it is branded) as well as any other products
which may be developed or otherwise obtained from time to
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time by Agrotech or Xxxxxxx xx Xxxxx Xxxxxx (who, for the
purposes of this provision, also executes this Agreement), it
being agreed by Agrotech that all of its employees and agents,
from time to time, shall likewise be bound by these provisions,
which have as their purpose the prolongation of the life of any
types of food or, more generally, the affecting of a defined
area by adsorption, conversion or other management technique,
including, for example only and without limitation, products
which would remove smoke from indoor environments.
(d) Agrotech shall have the right to supply such Products as it
deems appropriate for the purposes set forth in any orders from
CCA, provided, however, that the Products supplied shall conform
to the standards of effectiveness of Conserver 21 as it now
exists and any higher standards, whether in general efficacy or
in the specificity of intended use, of any Products later
developed or obtained, as set forth in sub-paragraph (c), and
further provided that such Products shall be packaged in the
existing filter or sachet forms, as directed by CCA, unless
otherwise agreed by the parties or in accordance with paragraph
4(e) of this Agreement.
(e) During the term of this Agreement and subject to any
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applicable laws or governmental regulations, Agrotech shall not
permit and shall take all reasonable actions (including
equitable and legal actions) to prevent any person or entity
other than CCA from importing, promoting, distributing, selling,
using or otherwise commercially exploiting the Product in the
Territory, either directly or indirectly (for example, through
agents or sub-distributors), provided that should Agrotech fail
to take such reasonable action within ninety (90) days of
becoming aware of such infringement, CCA shall hereby be deemed
to have been appointed Agrotech's agent to take such action, in
its own name or in the name of Agrotech as CCA deems
appropriate, and the reasonable cost of such action taken by CCA
may be set against sums owing to Agrotech by CCA under paragraph
9 of this Agreement.
(f) Agrotech shall cooperate fully with CCA in preventing any
trans-shipment of the Product into the Territory from outside
the Territory by a third party.
2. TERM
The Initial Term of this Agreement shall commence as of the date hereof (the
"Effective Date") and shall be terminable as
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of the anniversary of such date in the year 2022 by ninety (90) days prior
notice in accordance with paragraph 15 of this Agreement, each successive year
of the Initial Term and any extension thereto being referred to herein as the
"Contract Year". Absent such termination (or extension), this Agreement, shall
continue from year to year from such anniversary in 2022, unless terminated at
the end of any Contract Year following such date by such ninety (90) days prior
notice or otherwise terminated in accordance with this Agreement.
3. RIGHTS AND OBLIGATIONS OF CCA
(a) In consideration of the rights granted hereunder, CCA agrees
that Agrotech shall have the right (i) to borrow up to One
Million U.S. Dollars (US$1,000,000) from CCA, such right arising
as soon as is practicable following CCA's initial public
offering, it being anticipated by CCA that such initial public
offering shall occur by 15th April 1997, it being agreed that in
any event Agrotech shall have the right to borrow up to One
Hundred Thousand U.S. Dollars (US$100,000) by 22nd April 1997
and the balance of Nine Hundred Thousand U.S. Dollars
(US$900,000) by 1st May 1997, and (ii) to borrow up to Five
Hundred Thousand U.S. Dollars ($500,000), not sooner than ninety
(90) days following such initial public offering, such rights
continuing throughout the Initial Term of this Agreement and any
extension hereto, it being
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agreed that such sums shall be lent at the one year interest rate
for Spanish Pesetas published in the Financial Times on the nearest
business day following each anniversary of the Effective Date,
incrementally in accordance with business plans of Agrotech
presented to CCA.
(b) The loan described in clause (a) (i) shall be repayable within three
(3) years of the date of the loan by offset over such period against
sums owing to Agrotech by CCA under paragraph 9 of this Agreement,
it being agreed that (A) Agrotech shall not be obliged to accept
more than one-third of the offset in any one year, and (B) such
offset of one-third in any one year shall be in the form of a credit
for Product ordered in such year in excess of Two Million U.S.
Dollars (US$2,000,000) in value in accordance with the prices
established in accordance with paragraph 9 of this Agreement, it
being further agreed that CCA shall have the right to carry forward
such credit right indefinitely and to use such credit right in
territories other than the Territory which it acquires in accordance
with paragraph 1(b) of this Agreement, and the loan described in
clause (a) (ii) shall be repayable within four (4) years of the date
of the loan by offset over such period against royalties payable by
CCA under paragraph 9(e) at no more than one-fourth of the offset in
any one (1) year.
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(c) CCA shall aggressively market and promote the Product in a manner
calculated to attain and sustain the maximum revenue from the Product
in the Territory.
(d) CCA shall be solely responsible for the cost of its advertising,
marketing and promotion within the Territory.
(e) CCA shall not, without written consent of Agrotech, manufacture,
distribute, sell or otherwise commercially exploit any other products
which might reasonably be deemed to compete with the Product, or
otherwise engage in any activity which might reasonably be expected to
damage the name, reputation or commercial potential for the Product in
the Territory, it being understood, however, that CCA may use (i) other
products which do not compete with the Products but may (?) or be used
commercially (?) with the Product, and (ii) competing products after
ninety (90) days' notice to Agrotech
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in accordance with paragraph 15 of this Agreement if Agrotech is
unable to supply the Product on a timely basis in the quantities
required by CCA.
(f) It is understood and agreed that CCA may exercise the rights granted
hereunder through sub-distributors or agents.
(g) CCA shall cooperate with Agrotech in its efforts to obtain, pursuant
to paragraph 4(b) of this agreement, all necessary permits, approvals
or other governmental authorizations required in order to use the
Product in its intended manner with cut flowers, fruit, vegetables,
meat, fish, poultry and in such other intended uses as the Product may
from time to time have.
(h) CCA shall have the right, upon reasonable notice, to have its
commercial staff and the commercial staff of its sub-distributors or
agents participate in training sessions conducted in English organized
by Agrotech at Agrotech's premises. Agrotech shall maintain a staff of
technicians able to explain the correct use of the Product and provide
technical information and assistance to assist CCA to market the
Products effectively. During the start-up period through 31st December
1997, if
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requested by CCA, Agrotech shall make its own experts available to
CCA in the Territory for periods up to fifteen (15) days at no cost
to CCA other than the costs of travel and living (at the standards
which would normally be expected by executives of CCA) and other
reasonable out-of-pocket expenses, which shall be borne by CCA. The
costs and expenses of CCA's staff undergoing training sessions
provided by Agrotech shall be borne by CCA.
(i) Agrotech shall maintain product liability insurance having adequate
coverage (determined by reference to the Territory) for product
liability risk related to the Products, and, provided that CCA pays
any additional expenses arising thereby, CCA shall have the right to
be named as an additional insured under such insurance policy. At
the request of CCA, Agrotech shall supply CCA with a copy of such
policy. At CCA's sole option, CCA shall obtain and maintain its own
product liability insurance relating to the Products and, at
Agrotech's request and expense, include Agrotech as an additional
insured during the whole term of this Agreement; should CCA
determine to maintain such coverage, Agrotech shall cooperate with
CCA in providing such information as the
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insurer may reasonably require. Both such insurance policies
shall contain a provision pursuant to which the insurers waive
any recourse against Agrotech or CCA, as the case may be.
(j) CCA shall maintain accurate and complete business and financial
records with respect to its commercial use and distribution of
the Product and, upon reasonable notice, shall make such records
available to Agrotech's employees or agents during regular
business hours.
4. RIGHTS AND OBLIGATIONS OF AGROTECH
(a) Agrotech shall use its best efforts to ensure that all Product
delivered to CCA hereunder is of the highest standard of quality
and conforms in all respects to the representations regarding the
Product made by Agrotech to CCA from time to time.
(b) Upon the advice to Agrotech by CCA of any regulatory or other
governmental permits, approval or authorizations required for the
commercial use and exploitation of the Product in the Territory,
Agrotech shall proceed, at its sole expense, to take all
necessary steps to obtain such permits, approvals or
authorizations, provided, however, that
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(i) Agrotech, at its option, may appoint CCA as its agent to obtain
such permits, approvals or authorizations, nevertheless in Agrotech's
name and at its expense, and (ii) if Agrotech fails either to proceed
to take such action, directly or by appointing CCA as its agent within
a reasonable period of time, then CCA shall have the right to take all
reasonable actions to obtain such permits, approvals or
authorizations, either in Agrotech's name or CCA's name, as CCA deems
appropriate, and to offset the cost of such action against any sums
owing to Agrotech under paragraph 9 of this Agreement.
(c) Agrotech shall provide CCA, on a current basis and at no cost, with
individual copies of all promotional materials which it or any of its
other distributors or sub-distributors have created, including access
to all "camera ready" materials and other marketing materials which
might reduce the cost to CCA of producing advertising materials.
(d) Agrotech shall (i) keep CCA informed of all positive and negative
publicity or developments concerning the Products and competitive
products so as to enable CCA to take advantage of or to be able to
respond to enquiries concerning the Products, and
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(ii) disclose to CCA all information it has developed or
acquired concerning the Products or any improvement or
modifications thereto which could be helpful in establishing
the commercial utility of the Products.
(e) Agrotech agrees to alter its packaging, labelling or general
presentation of the Product in accordance with requests of CCA
based upon market requirements, it being understood and agreed
that CCA shall bear the additional cost of such special
requirement packaging over the standard packaging of the
Product from time to time.
(f) Agrotech agrees generally to cooperate fully with CCA in the
marketing of the Product as it exists now and the development
of the Product to fulfil demands identified by CCA, it being
understood that Agrotech shall be promptly reimbursed for any
out-of-pocket expenses incurred by it in connection with travel
undertaken at the request of CCA.
5. REPRESENTATIONS, WARRANTIES, COVENANTS AND INDEMNITIES OF AGROTECH
(a) Agrotech represents and warrants that (i) it has the full right
and authority to enter into this Agreement and grant the
rights granted hereunder,
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that the execution and delivery of this Agreement was duly authorized by
all necessary corporate action, and this Agreement represents the valid and
binding obligation of Agrotech; (ii) its grant of the right to use
intellectual property rights hereunder does not infringe any third person's
ownership of or proprietary interest in any such intellectual property;
and (iii) the Products intended for use with food products are and at all
times shall be fit for use with such food products. By signing this
Agreement, Xxxxxxx xx Xxxxx Xxxxxx hereby consents to the grant of rights
hereunder with respect to any Products for which he or she may hold the
relevant patent from time to time.
(b) Xxxxxxx xx Xxxxx Xxxxxx and Xxxx-Xxxxx Xxxxx-Arrevalello Xxxxxxx
represents, warrants and covenants that, as controlling shareholders of
Conserver XXI, S.A., a Spanish company now in voluntary liquidation, and as
the sole shareholders and directors of Agrotech, they shall ensure that
Agrotech has all rights, including, without limitation, intellectual
property rights, related to the Products which were at any time held by
Conserver XXI, S.A.
(c) Agrotech hereby agrees to indemnify CCA for any loss or damage suffered by
it, including legal expenses and lawyers' fees, arising from any breach of
the representations, warranties and covenants set forth in this
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paragraph 5.
6. MINIMUM ANNUAL PURCHASES
(a) It is hereby agreed that in the first Contract Year following the
Effective Date, CCA shall purchase Product having a cost,
pursuant to paragraph 9 of this Agreement, of not less than Two
Million U.S. Dollars (US$2,000,000), and in each subsequent
Contract Year the minimum purchase requirement shall be mutually
agreed in writing by Agrotech and CCA by reference to inflation
and business conditions in the Territory.
(b) In the event that CCA shall fail to purchase the minimum quantity
of Product as set forth in sub-paragraph (a) in any Contract
Year, then in the following year, upon the expiration of ninety
(90) days' notice to CCA in accordance with paragraph 15 of this
Agreement, Agrotech shall have the right (but not the obligation)
to sell Product to other customers in the Territory.
7. DELIVERY
(a) Agrotech shall use it best efforts to have all Product available
for shipment as soon as possible following receipt of an order
but in no event later than in accordance with the timetable set
forth in Schedule I
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attached hereto and made a part hereof.
(b) It is understood and agreed that all Product shall be delivered F.O.B.,
CCA's warehouse in the Territory, provided that CCA shall pay the shipping
costs due to Agrotech or its order when such costs become due.
8. ACCEPTANCE AND CLAIMS
(a) CCA shall be deemed to have accepted without reservation all Product
delivered by Agrotech unless claims for alleged defects, shortages, or any
other claims or alleged claims of any nature related to the Product are
made to Agrotech in accordance with sub-paragraph (b). Failure to report
any alleged claim in accordance with sub-paragraph (b) shall permanently
extinguish any and all rights arising from or accruing to CCA from such
alleged claim or any larger or related cause of action of which said
alleged claim is an integral part.
(b) All claims for alleged defects or shortages shall be made in writing and
delivered in accordance with paragraph 15 of this Agreement as soon as
discovered and in any event not later than fifteen (15) days, in the case
of shortages, and thirty (30) days in the case of defects, after delivery
of Products to CCA's destination in the Territory. If CCA shall claim that
any Product is defective, upon Agrotech's request CCA shall promptly supply
Agrotech with samples of
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the allegedly defective Product or such other evidence of deficiency as
Agrotech shall reasonably specify. Any such claim or alleged claim, of
whatever type, of CCA related the Product shall be made in writing and
delivered in accordance with paragraph 15 of this Agreement, as soon as
is practical after CCA becomes aware of the basis of the claim.
(c) If Agrotech and CCA agree that Product delivered to CCA not usable for
its intended purpose as a result of defective production, Agrotech reserves
the right to require CCA to return to Agrotech, at such location as
Agrotech may direct and at Agrotech's expense, all or part of such unusable
Product, or to destroy it or otherwise dispose of it at Agrotech's expense
and liability and pursuant to its instructions.
9. PRICES AND TERMS; ROYALTIES; PAYMENT
(a) In consideration of the rights granted by Agrotech to CCA hereunder, CCA
agrees to pay to Agrotech, in
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the manner hereinafter set forth; the invoice price to CCA
for the Product ordered by CCA from time to time.
(b) CCA shall pay for the Product ordered by wire transfer
to such account as shall be notified from time to time by
Agrotech, it being agreed that (i) each order shall be
accompanied by a simultaneous wire transfer of fifty
percent (50%) of the total price of each order. (ii) the
balance shall be payable within forty five (45) days of
shipment of the Product in the first Contract Year and
ninety (90) days after such shipment thereafter, and (iii)
any unpaid and overdue amount shall bear interest at
the prime rate of Citibank, N.A., as in effect from time
to time, which amounts shall be added to the amount due to
Agrotech from the date such amount becomes due until the
date of payment.
(c) Prices for the Product shall be agreed in writing before
the start of every alternate Contract Year, it being agreed
that the prices for the first two (2) Contract Years shall
be as set forth in Schedule II attached hereto and made a
part hereof and that any adjustments to such prices in
subsequent Contract Years shall be mutually agreed
reasonable, and negotiated in good faith.
(d) Any variation in the method of payment set forth in this
paragraph 9 or in the agreed price from time to time shall
be agreed in writing by the parties hereto.
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(e) In consideration of Agrotech's entering into this
Agreement, and as additional payment hereunder, CCA shall
pay a royalty to Agrotech of four (4%) percent of Net
Revenues (as defined below) of CCA generated from the
commercial use of the Product, such payment to be made
quarterly, forty-five (45) days after the end of each
calendar quarter, each such payment to be accompanied by
copies of such records as Agrotech may reasonably require
in order to verify revenues received from the commercial
use of the Products.
(f) For the purposes of this agreement the term "Net
Revenues" shall mean the gross proceeds actually received
by CCA from the commercial exploitation of Products reduced
by any cost to CCA of packing,
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freight, and insurance of the Product, and by federal, state
and local taxes.
10. INTELLECTUAL PROPERTY
(a) CCA hereby acknowledges, as between CCA and Agrotech,
Agrotech's exclusive ownership and other rights in the
"Conserver 21" trademark, trade name and other trade
designations in the Territory, as well as patents registered
and/or applied for in Spain and The Hague, as listed in
Schedule III attached hereto and made a part hereof, as well
as any other patents related to the Products from time to time
(the "Patents"), and further acknowledges that the rights
granted hereunder are a non-assignable privilege to use such
"Conserver 21" trade designations only in connection with the
distribution, marketing, advertising, display, sale and
commercial exploitation of the Product. This privilege shall
terminate upon termination of this Agreement.
(b) Agrotech hereby agrees that it shall apply to register the
Patents in each jurisdiction in the Territory as soon as is
practicable following the Effective Date and further agrees
that if it fails to take such action within a reasonable
period of
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time, CCA shall hereby be deemed to have been appointed Agrotech's agent to
take such action, in Agrotech's name, in which event Agrotech shall
cooperate fully with CCA in such action, and the reasonable cost of such
action taken by CCA may be set against sums owing to Agrotech by CCA under
paragraph 9 of this Agreement.
(c) CCA shall at all times recognize, respect and protect Agrotech's right of
total ownership of the "Conserver 21" trademark and any other trademarks
used in conjunction with the Product in the Territory, as well as the
Patents, and shall not intentionally derogate, diminish or weaken Agrotech's
sole property rights in said xxxx and the Patents.
(d) CCA shall promptly notify Agrotech of any and all infringements of
Agrotech's trademarks, patents and any other intellectual property rights
held or used in conjunction with the Product in the Territory that may come
to CCA's attention, and Agrotech shall take all reasonable action against
such infringement, with which action CCA shall cooperate, all expenses and
costs incident thereto being borne by Agrotech, provided that should
Agrotech fail to take such reasonable action, CCA shall hereby be
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deemed to have been appointed Agrotech's agent to take such action, in
its own name or in the name of Agrotech as CCA deems appropriate, and
the reasonable cost of such action taken by CCA may be set against sums
owing to Agotech by CCA under paragraph 9 of this Agreement.
(e) Agrotech shall defend and hold CCA harmless from any claim,
liability, suit, cost or expense arising out of any third-party claim of
infringement of its property right in the "Conserver 21" trademark or
the Patents.
11. TERMINATION FOR CAUSE
(a) Either party may terminate this Agreement if the other party commits
a material breach of this Agreement, by giving thirty (30) days written
notice to the other party of such breach and termination, unless the
defaulting party cures such breach within such period.
(b) This Agreement shall be automatically terminated, without further
notice, and each party shall thereupon be released from all obligations
hereunder, in the event of:
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(i) the insolvency of either party, however such insolvency may be
evidenced;
(ii) the complete or partial liquidation or suspension of the business
of either party;
(iii) the filing by or against either party of a voluntary or
involuntary petition pursuant to any present or future act of a
governmental organ having jurisdiction over the party, or any political
subdivision thereof, on the subject of bankruptcy;
(iv) the institution of any proceeding by or against either party for
any relief under any law relating to the relief of debtors, adjustments
of indebtedness, reorganizations, arrangements, compositions or
extensions;
(v) the making by either party of any assignment for the benefit of
creditors, or the application for the appointment or the appointment of
any receiver of the property of either party;
(vi) the filing or issuance of a notice of lien for the purpose of
attaching or sequestering a
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substantial part of the property or assets of either party
unless such lien is bonded or otherwise stayed;
(vii) the service of a warrant for distraint or notice of any
intended bulk sale or the commencement of any proceeding
supplementary to judgement; or
(viii) the dissolution of either party;
(c) Should the termination of this Agreement be occasioned by the
occurrence of any of the events enumerated in sub-paragraph (b) with
respect to Agrotech, then CCA shall have the right to purchase the
Product from any successor in interest to Agrotech on the same terms
and conditions set forth herein.
12. STATUS OF PARTIES
The relationship of CCA to Agrotech shall be that of an independent contractor
engaged in purchasing the Product from Agrotech for commercial exploitation. As
such, neither party nor any of their respective employees are either agents or
legal representatives of the other for any purpose, and neither shall have any
power or authority to represent, act
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for, bind or commit the other. Neither the making nor performance of this
Agreement shall be construed in any manner to establish a joint venture or
partnership.
13. ASSIGNMENT
The parties acknowledge that this Agreement is personal in nature and agree
that this Agreement shall not be assigned by either party, in whole or in part,
without the prior written consent of the other. Any purported assignment of
this Agreement or any interest therein without the written consent of the other
party shall be void. The foregoing notwithstanding, each party shall have, at
all times and in its sole and unfettered discretion, the right to sell, convey,
assign or otherwise transfer its interest in this Agreement to any entity which
it controls, is controlled by, or is under common control with.
14. SEVERABILITY
The illegality or unenforceability of any provision of this Agreement shall not
impair the legality or enforceability of any other provision. The laws, rules
and regulations of the jurisdictions in which CCA conducts its business are
hereby incorporated in this Agreement to the extent that such laws, rules and
regulations are required to be so incorporated and shall supersede any
conflicting provision of this Agreement.
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If required by applicable law, Agrotech and CCA may enter into an amendment of
this Agreement for the sole purpose of complying with such law.
15. NOTICE
Any notice permitted or required under this Agreement shall be deemed to be
effective upon receipt if such notice is in writing and is personally served or
mailed by registered or certified air mail, postage prepaid, return receipt
requested, or sent by international air courier, to the addresses of the
parties as herein stated or to such other addresses as shall have been charged
by either party to the other in writing in accordance with this provision, and
evidenced by post office or courier receipt, as the case may be, or, if sent
by telex or facsimile, upon receipt of appropriate confirmation.
16. MODIFICATION
This Agreement may be modified, amended or revised only by a written
instrument, duly executed by the parties hereto.
17. ENTIRE AGREEMENT
This Agreement, along with any schedules and duly executed addenda hereto, shall
be deemed to contain the entire and only agreement between the parties relating
to the subject matter
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hereof, and any representations, terms or conditions relating hereto and not
incorporated herein shall not be binding upon either party. This Agreement
wholly cancels, voids, and supersedes any agreement heretofore entered into
between the parties with respect to the subject matter hereof, except as
otherwise expressly provided herein.
18. COMPLIANCE WITH LAWS
In the conduct of its business in relation to this Agreement, CCA shall comply
with all applicable laws, regulations and orders and the like prevailing in the
Territory and shall hold Agrotech harmless from any claim, liability, cost or
expense arising out of a violation thereof.
19. GOVERNING LAW; ARBITRATION
(a) It is the express intent of the parties that this Agreement shall be
interpreted in accordance with and governed by the laws of the State
of Delaware.
(b) Any dispute arising hereunder shall be finally resolved by arbitration
by and under the rules of the International Chamber of Commerce, such
arbitration to be conducted in Madrid.
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20. WAIVER AND REMEDIES
No waiver by either of the parties hereto of any failure by the other party to
keep or perform any covenant or condition of this Agreement shall be deemed a
waiver of any preceding, succeeding or continuing breach of the same or any
other covenant or condition. Except as expressly provided to the contrary, the
remedies herein provided shall be deemed cumulative, and the exercise of one
shall not preclude the exercise of any other remedy nor shall the specifications
of remedies herein exclude any rights or remedies at law or in equity which may
be available.
21. HEADINGS
The title or headings of provisions herein are used for convenience only and
shall in no way be used to construe the meaning of the provisions hereof.
22. EXECUTION
This Agreement may be executed by duly authorized representatives of the
respective parties hereto in any number of counterparts, each of which shall be
deemed the original. This Agreement may be translated into any other language,
and such translation may be initialled, but only this Agreement in the English
language shall be deemed the original. If any
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SCHEDULE I
Delivery Time for the Product
Sachets: Six (6) weeks plus one (1) week for each two hundred
fifty thousand (250,000) sachets ordered.
Filters: One (1) week for each ten thousand (10,000) filters
ordered.
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conflict exists between the English language and the translation, the English
language version shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their
duly authorized representatives as of the date and year first, above written.
CONSERVER CORPORATION OF AMERICA
By:
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AGROTECH 2000 SL
By:
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and
By:
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XXXXXXX XX XXXXX XXXXXX
----------------------------------
XXXX-XXXXX XXXXX-AREVALILO ACEVIDO
31
SCHEDULE II
Prices
Prices for the first two (2) Contract Years shall be Seventeen U.S. Dollars
(US$17.00) per filter and Nineteen U.S. Cents (US$0.19) per sachet that ex
works.
---------------------------------
32
SCHEDULE III
Patents
1. Number 9401478 in Spain, filed under the name of
Conserver XXI, S.A.
2. Number 9600692 in Spain, filed under the name of Xxxxxxx
xx Xxxxx Xxxxxx.
3. Number PCT/EP96/02742 in The Hague, filed under the name
of Xxxxxxx xx Xxxxx Xxxxxx.
