MANUFACTURING AGREEMENT
Exhibit
10.4
THIS
MANUFACTURING AGREEMENT (this “Agreement”) is made this ______ day of April,
______ (“Effective Date”), by and between ANSCOTT CHEMICAL, INC., with its
principle place of business at 00 Xxxxx Xxxxx, Xxxxx, Xxx Xxxxxx. 00000
(hereinafter “ANSCOTT”), and ENVIROSAFE CORPORATION with its principle place of
business at _______________________________________________ (hereinafter
“ENVIROSAFE”). ANSCOTT and ENVIROSAFE are sometimes individually refereed to as
“party” or collectively as the “Parties.” In consideration of the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows.
ARTICLE
1
- APPOINTMENT OF ANSCOTT
Appointment.
ENVIROSAFE hereby appoints ANSCOTT, as its manufacturer to (i) receive, purchase
and/or create ENVIROSAFE products; (ii) to blend and create products at a rate
of $0.75 per pound for specialties and .25 for all cold blended materials
shipped from the facility with a minimum of ____ pounds per year; (iii) provide
up to two (2) labors for cosmetic products and other services or product
offerings for additional cost as per Appendix A, (iv) no monitor of inventory
and lot control; (iv) package product in 55 gallon open head drums are included;
(v) all additional goods or services will be billed according to the attached
pricing schedule with the exception of general maintenance being billed with
the
first hour free (vi) to oversee shipping management and Xxxx of Lading; (vii)
to
ship ENVIROSAFE’S finished products(the “Product”) F.O.B Wayne, New Jersey to
end-user purchasers (the “Customers”).
ARTICLE
2
- SERVICES; SUPPLY AND DELIVERY OF PRODUCTS
Requirements
for Product.
ENVIROSAFE shall purchase from ANSCOTT and ANSCOTT shall sell to ENVIROSAFE
,
such services, as ENVIROSAFE requires for sale to its Customers located within
and outside the United States, in accordance with this Agreement. Except for
the
service, maintenance and support to be provided by ANSCOTT, pursuant to this
Agreement, or unless directed otherwise by ANSCOTT in writing, ENVIROSAFE shall
be solely responsible for the installation, maintenance and support of such
Products. ENVIROSAFE shall have the right to have other manufacturers produce
their products if products cannot be produced at Anscott.
Purchase
Orders.
(a) Each
request for purchase of services by ENVIROSAFE shall be pursuant to a fully
completed written purchase order (a “Purchase Order”) executed and delivered to
ANSCOTT. Each Purchase Order shall be deemed to specifically incorporate by
reference this Agreement, and in the event of any inconsistency between this
Agreement and any Purchase Order (other than as expressly permitted pursuant
to
the terms of this Agreement), this Agreement shall prevail. (b) No Purchase
Order shall be binding upon ANSCOTT unless and until accepted in writing by
ANSCOTT. ANSCOTT shall use commercially reasonable efforts to (i) timely notify
ENVIROSAFE of the acceptance or rejection of such Purchase Order and (ii) on
acceptance of such Purchase Order, deliver the Products on the requested
delivery dates. Notwithstanding the foregoing, ENVIROSAFE acknowledges and
agrees that (iii) ANSCOTT shall have the right to reject Purchase Orders and/or
to delay or defer shipments of products in the event that ENVIROSAFE is in
arrearages of any payments. Then those amounts due and owing ANSCOTT or
otherwise in material breach of this Agreement and (iv) such action by ANSCOTT
shall neither constitute a breach of this Agreement by ANSCOTT or excuse
performance of ENVIROSAFE.
1
Payment
Terms.
ENVIROSAFE shall pay ANSCOTT the price for such services in accordance with
Standard Payment Terms of payment in full after services rendered and prior
to
shipment, or as otherwise mutually agreed by the Parties, as set forth in the
Purchase Order.
Inspection.
ENVIROSAFE shall have five (5) days following the delivery of Products to
ENVIROSAFE to inspect all Products to determine whether any damage to the
Product occurred during shipment or whether there is any shortage or discrepancy
between the Products actually delivered and the applicable shipping documents
(a
“Discrepancy”). ENVIROSAFE will retain all Products for which there is a
Discrepancy in their original packaging for inspection by ANSCOTT or the
insurer. Within 3 days following the discovery of any Discrepancy, ENVIROSAFE
shall notify ANSCOTT of such Discrepancy in writing and, unless otherwise
directed by ANSCOTT. ENVIROSAFE shall make appropriate claims under the shipment
insurance and commence arrangements to insure any ship the Products back to
ANSCOTT as soon as practicable, but in no event longer than (5) days from the
discovery of the Discrepancy. The proceeds of such insurance shall be used
to
cover the cost of the repair or replacement of the Products for which a
Discrepancy has occurred, including the cost of return shipment and insurance
and replacement shipment and insurance. In the event insurance proceeds do
not
cover all such costs, such additional costs shall be borne equally by ANSCOTT
and ENVIROSAFE.
ARTICLE
3
- LIMITED PRODUCT WARRANTY
Warranties.
ANSCOTT
will offer a Limited Warranty to produce ENVIROSAFE products in accordance
with
manufacturing procedures supplied by ENVIROSAFE .
ANSCOTT
MAKES NO OTHER WARRANTIES TO CUSTOMERS WITH RESPECT TO THE PRODUCT AND DISCLAIMS
ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A
PARTICULAR PURPOSE.
OTHER
THAN AS SET FORTH IN ARTICLE 2 ABOVE, ANSCOTT PROVIDES THE PRODUCTS TO
ENVIROSAFE ON AN “AS IS” BASIS. ENVIROSAFE SHALL OFFER OR MAKE NO WARRANTIES,
REPRESENTATIONS, OR STATEMENTS, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT
TO CUSTOMERS, AND ANY SUCH WARRANTIES, REPRESENTATIONS, OR STATEMENTS SHALL
BE
VOIDED, INVALID, AND UNENFORCEABLE AGAINST MANUFACTUURER.
THE
SOLE
AND EXCLUSIVE REMEDY OF ENVIROSAFE FOR ANY DEFECT IN THE PRODUCTS SHALL BE
TO
OBTAIN REPLACEMENT OF THE DEFECTIVE ITEMS THAT ARE RETURNED TO ANSCOTT POINT
OF
SHIPMENT, FREIGHT PREPAID.
ARTICLE
4
- CONFIDENTIALITY
Each
party agrees not to disclose any Confidential Information provided to it by
the
other party and to maintain such Confidential Information in strictest
confidence, to take all reasonable precautions to prevent its unauthorized
dissemination and to refrain from sharing any or all of the information with
any
third party for any reason whatsoever except as required by court order, both
during and after the termination of this Agreement. Without limiting the scope
of this duty, each party agrees to limit its internal distribution of the other
party's Confidential Information only on a "need to know" basis and solely
in
connection with the performance of this Agreement, and to take steps to ensure
that the disseminations is so limited. Each party agrees not to use the other
party's Confidential Information for its own benefit or for the benefit of
anyone other than the providing party. All Confidential Information remains
the
property of the providing party and no license or other rights in the provided
Confidential Information is granted hereby. Upon written request of the
providing party, or upon the expiration or other termination of this Agreement
for any reason whatsoever, the recipient party agrees to return to the providing
party all such provided Confidential Information, including but not limited
to
all documentation, notes, plans, drawings, and copies thereof. Confidential
information will include but be limited to information regarding each parties
product formulas, customers, pricing, client contacts and
suppliers.
The
parties agree that the terms of this Agreement are confidential, and that
neither shall disclose any such terms to any third party without prior written
consent of the other.
The
provisions of this Section shall survive the expiration or other termination
of
this Agreement.
2
ARTICLE
5
- REPRESENTATIONS AND WARRANTIES
Each
Party hereby represents and warrants to the other Party as follows:
Existence
and Power.
Such
Party is duly organized, validly existing and in good standing under the laws
of
the jurisdiction of its organization and is in compliance with all material
requirements of applicable law.
Authorization
and Enforcement of Obligations.
Such
Party (a) has the power, authority and legal right to enter into this Agreement,
perform its obligations hereunder and consummate the transactions with third
parties contemplated hereby and (b) has taken all necessary action on its part
to authorize the execution and delivery of this Agreement and the performance
of
its obligations hereunder. This Agreement constitutes a legal, valid and binding
obligation of each Party, enforceable against such Party in accordance with
its
terms.
No
Consents.
All
necessary consents, approvals and authorizations of all governmental authorities
and other Persons required to be obtained by such Party in connection with
this
Agreement and the consummation of transactions with third parties contemplated
hereby have been obtained.
No
Conflict.
The
execution and delivery of this Agreement, performance of such Party's
obligations hereunder and consummation of the transactions with third parties
contemplated hereby do not conflict with or violate any requirement of any
applicable law of regulations and do not conflict with or constitute a default
under any contractual obligation of such Party.
Liens
and Encumbrances.
Providing that ENVIROSAFE is current with all payments due, ANSCOTT will not
cause any liens or encumbrances to be placed on ENVIROSAFE inventory or
equipment on the premises of ANSCOTT.
Indemnification.
ANSCOTT
will indemnify ENVIROSAFE and hold harmless any liability in connection with
its
breach of representations and warranties in connection with its performance
under this agreement. ENVIROSAFE will indemnify ANSCOTT and hold harmless any
liability in connection with its breach of representations and warranties in
connection with its performance under this agreement.
ARTICLE
6
- TERM AND TERMINATION
Term.
This
Agreement shall commence on the Effective Date and continue in force for one
(1)
years with an automatic renewal at market rates unless notified within one
(1)
month of renewal that a party chooses not to renew.
Termination.
For
cause by either party without prejudice to any rights either party may have
under this Agreement or in law, equity or otherwise, either party shall have
the
right to terminate this Agreement if the other party materially defaults in
the
performance of any of its obligations or materially breaches any term,
provision, warrant, or representation under this Agreement ("Default")
and
fails to correct the Default or to commence any and all steps reasonably
necessary to cure such Default within thirty (30) days of receipt of written
notice of such Default by the non-defaulting party.
ENVIROSAFE
may
terminate the H.D. REALTY Lease and/or ANSCOTT Manufacturing agreements with
a
one (1) month notice.
3
Effect
of Termination.
On
termination of this Agreement for any reason, all rights granted by either
party
to one another hereunder shall automatically and completely revert to the
granting party on the effective date of Termination, unless otherwise agreed
to
in writing by the Parties.
(a) |
Within
ten (10) days of the effective date of such Termination, both parties
shall submit to one another:
|
(b) |
A
list of all Products in the possession, custody, or control of the
other
party as of the effective date of such
termination.
|
(c) |
All
unshipped Product Orders shall be automatically
canceled.
|
(d) |
All
monies then outstanding and due to one party by the other party shall
immediately be payable in full, and shall be paid to the other party
within ten (10) days of the effective date of
termination.
|
(e) |
Both
parties shall promptly return to the other party any and all property
of
any kind belonging to the other
party.
|
NO
ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT
MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE PARTY KNEW
OF
THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CAUSE OF ACTION.
(a) |
The
provisions of this paragraph shall survive the termination of this
Agreement.
|
ARTICLE
7
- MISCELLANEOUS
Independent
Contractors.
Both
ANSCOTT and ENVIROSAFE are independent contractors not affiliated with one
another and shall retain its independent status throughout this Agreement and
use it own discretion in performing the tasks assigned. No employment
relationship is created by this Agreement. Both parties will report as income
to
the appropriate government agencies all compensation received pursuant to this
Agreement and will pay all applicable taxes. Neither party will not make
deductions from its fees, nor shall it in any way be deemed liable to the other
party, for taxes, insurance, bonds, or any other subscription of any kind.
Both
parties will be responsible for and will promptly pay all relevant taxes,
chargeable or assessed with respect to its employees. ENVIROSAFE employees
and
sub-contractors will be under the sole and exclusive direction and control
of
ENVIROSAFE, will not be considered employees of ANSCOTT for any purpose, and
are
ineligible for any ANSCOTT employee benefits.
No
Assignment.
Neither
party may assign or transfer this Agreement either directly or indirectly.
Any
such assignment in violation of this Section shall be void, unenforceable,
and a
material breach of this Agreement by the breaching party.
Notice.
Any
notice given by either party to the other party shall be in the English language
and shall be sent by courier, mail, electronic mail or electronic transmission
(facsimile) confirmed by mail to the other party's signatory at the address
set
forth in this Agreement or as shall have otherwise been notified to the other
party. Notices shall be deemed delivered on confirmed receipt.
Force
Majeure.
Neither
party will be deemed in default or breach of this Agreement to the extent that
performance of its obligations or attempts to cure any breach are delayed or
prevented by reason of any act of God, fire, natural disaster, accident, act
of
government, or an act that is beyond the reasonable control of either party,
provided that such party gives the other party written notice thereof promptly
and, in any event, within fifteen (15) days of discovery thereof and uses its
best efforts to continue to so perform or cure. In the event of such a Force
Majeure, the time for performance or cure will be extended for a period equal
to
the duration of the Force Majeure, but in no event more than thirty (30)
days.
4
Severability.
If any
part of this Agreement is held to be invalid or unenforceable, such invalidity
or unenforceability shall not affect the validity or enforceability of any
other
part of provision of this Agreement, which shall remain in full force and
effect.
Governing
Law: Remedies.
(i) |
This
Agreement shall be governed by and construed in accordance with the
laws
of the state of New Jersey, United States of America, as applicable
to
contracts made to be performed within such state without giving effect
to
its conflict of law provisions. Both Parties expressly consent to
jurisdiction and venue in a court of competent jurisdiction in the
County
of Passaic State of New Jersey over all disputes had by one party
against
the other arising out of this
Agreement.
|
(ii) |
If
any action is brought to enforce or interpret this Agreement, the
prevailing Party will recover its reasonable attorneys fees and other
costs incurred in that action from the other Party, in addition to
any and
all other relief to which the prevailing Party may be
entitled.
|
No
Waiver.
The
waiver of any provision of this Agreement by either party, or the failure of
either party to require performance of any provision of this Agreement shall
not
be construed as a waiver of its rights to insist on performance of that same
provision, or any other provision, at some other time. Any waiver, variation
or
amendment, or modification, of any term or condition of this Agreement shall
be
effective only if in writing signed by an authorized representative of both
parties hereto. The waiver by either party of any right created by this
Agreement is one or more instances shall not be construed as a further
continuing waiver of such right or any other right created by this
Agreement.
Language.
The
governing language of this Agreement shall be English, and the American usage
thereof, and all measurements and calendars shall be those conventions used
in
the U.S. In the event this Agreement is translated into another language, the
English version shall control if there is a conflict in the meaning of the
translated version and the English version.
Entire
Agreement.
The
English language version of this Agreement shall be the official text hereof,
despite translations or interpretation of this Agreement in other languages.
This Agreement constitutes the entire agreement between parties concerning
the
subject matter hereof, and expressly supercedes any prior written or oral
understandings or agreements between them with respect to the subject matter
hereof.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
ANSCOTT
CHEMICAL, INC. ENVIROSAFE
CORPORATION
By:___________________________
By:
__________________________
Name:
Name:
Title:
Title:
Date:
Date:
5
Appendix
A
Material
Handling and Space
|
Item
#
|
Pricing
|
|
Goods
and Services
|
Item
#
|
Pricing
|
Monthly
Storage Space 1,000 - 5,000 Sq Ft
|
VIC001A
|
2.50
Per Sq Ft
|
UPS
Freight Charges
|
VIC011
|
Cost
+ 15%
|
|
Monthly
Storage Space 5,001 - 10,000 Sq Ft
|
VIC001B
|
1.50
Per Sq Ft
|
Truck
Freight Charges
|
VIC012
|
Cost
+ 15%
|
|
Monthly
Storage Space 10,001 - 20,001 Sq Ft
|
VIC001C
|
.83
Per Sq Ft
|
Miscellaneous/
Contractor
|
VIC019
|
Cost
+ 15%
|
|
Monthly
Storage Space 20,001 - 30,000 Sq Ft
|
VIC001D
|
.71
Per Sq Ft
|
Skid
(48x40)
|
VIC020
|
13.00
Per Skid
|
|
Daily
Office Space plus phone service
|
VIC001E
|
35.00
Per Day
|
Boxes
(4x1)
|
VIC021
|
1.00
Per Box
|
|
Daily
Meeting Space with Overhead
|
VIC001F
|
50.00
Per Day
|
Gallons
untreated
|
VIC022
|
.80
Per Gallon
|
|
General
Labor
|
VIC002A
|
28.00
Per Hour
|
Gallons
treated
|
VIC023
|
1.25
Per Gallon
|
|
Technical
Labor
|
VIC002B
|
65.00
Per Hour
|
Pails
(steel lined)
|
VIC024
|
9.50
Per Pail
|
|
Professional
Labor
|
VIC002C
|
85.00
Per Hour
|
Pails
(plastic)
|
VIC025
|
7.50
Per Pail
|
|
Drums
In or Out
|
VIC003
|
1.97
Per Drum
|
Drums
(steel)
|
VIC026
|
40.00
Per Drum
|
|
Pails
In or Out
|
VIC004
|
.24
Per Drum
|
Drums
(plastic)
|
VIC027
|
35.00
Per Drum
|
|
Boxes
In or Out
|
VIC005
|
.24
Per Box
|
Labels
(setup)
|
VIC028
|
25.00
Per Label
|
|
Pallet
Wrapping
|
VIC006
|
12.67
Per Pallet
|
Labels
(drum)
|
VIC029
|
.25
Per Drum
|
|
Cold
Blending
|
VIC007A
|
.10
- .24 Per Lb.
|
Labels
(gallon)
|
VIC030
|
.12
Per Gallon
|
|
Hot
Xxxxxxxx
|
XXX000X
|
.10
- .24 Per Lb.
|
Phone
Lines w/one VM
|
VIC050
|
25.
Per Line Monthly
|
|
Specialized
Blending
|
VIC007C
|
.38
- 1.25 Per Lb.
|
Long
Distance Interstate
|
VIC051
|
.075
Per Minute
|
|
Reaction
Xxxxxxxx
|
XXX000X
|
Project
Basis
|
Internet
Access
|
VIC052
|
69.00
Per Month
|
|
Filling
Pails & Gallons
|
VIC008A
|
.03
- .10 Per Lb.
|
Voice
Mail Box
|
VIC053
|
3.95
Per Month
|
|
Filling
Under 128Oz
|
VIC008B
|
.10
- .15 Per Lb.
|
Accounting
Services
|
VIC075
|
Project
Basis
|
|
Copying
|
VIC009
|
.07
Per Sheet
|
Engineering
Services
|
VIC076
|
Project
Basis
|
|
Documentation
|
VIC010
|
.10
Per Sheet
|
Laboratory
Services
|
VIC077
|
Project
Basis
|
6