ATLLIB01 434895.1
EXCLUSIVE SALES
AND DISTRIBUTORSHIP AGREEMENT
THIS EXCLUSIVE SALES AND DISTRIBUTORSHIP AGREEMENT ("Agreement") is
made as of the ____ day of October, 1997, by and between BIOSHIELD TECHNOLOGIES,
INC., a Georgia corporation having a place of business at 0000 Xxxxxxxxxxxxx
Xxxx., Xxxxx X000, Xxxxxxxx, Xxxxxxx 00000 ("Supplier"), and SANITARY COATING
SYSTEMS, LLP., a Florida corporation having a place of business at 0000 Xxxxxxxx
Xxxx., Xxxxx X0-000, Xxxx Xxxxx, Xxxxxxx 00000 ("Purchaser").
W I T N E S S E T H:
WHEREAS, Supplier has developed significant know-how and proprietary
technology in connection with antimicrobial and biostatic products; and
WHEREAS, Supplier desires to appoint Purchaser as its sole and
exclusive Purchaser for sales of the products and distributor for the use, sale
and marketing of said products in the coatings industry and Purchaser is willing
to accept such appointment from Supplier on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and other good and valuable consideration, the receipt
and adequacy of which hereby are acknowledged, the parties hereto agree as
follows:
(A) DEFINITIONS.
(1) The following terms shall have the following meanings:
"Affiliate" shall mean, with respect to any corporation or
non-corporate business entity which controls is controlled by, or is under
common control with a party to this Agreement.
"Agreement" shall mean this Agreement, including all Attachments hereto.
"Alliance Partner(s)" shall mean any third party including, but not
limited to strategic partners, sublicenses, distributors, co-promotion or
co-marketing partners: (1) to which Purchaser grants rights to make,
incorporate, have made, use, import, offer for sale, distribute or sell Products
or (ii) with which Purchaser enters into any supply contracts or service
agreements pertaining to any Products.
"Confidential Information" shall mean all non-public trade secrets,
proprietary technology, know-how, or other proprietary business or technical
information of a party hereto or an Affiliate of it heretofore or hereafter
disclosed to any party or its Affiliates, but shall not include any information
or document that (i) is or becomes in the public domain other than as a result
of a disclosure by a party or an Affiliate of it to whom such information was
supplied pursuant to this Agreement or any other agreement restricting the use
or disclosure of such information or documents (other than a disclosure approved
in writing by the party who, or whose Affiliate, supplied the information), (ii)
was or becomes lawfully available to the party of its Affiliate to whom such
information was supplied otherwise than by another party hereto, or (iii) was
generated independently by the party or its Affiliate to whom such information
was supplied without reference to non-public information furnished by another
party hereto or an Affiliate of it.
"Field of Use" shall mean the use of the Property in the coatings
industry, including residential latex indoor/outdoor paints and stains;
architectural and industrial paints, lacquer and maintenance coatings and
finishes including alkyd, eurathane, enamel, epoxy, siloxaline and novalac
products and systems, except textile coatings, anti-corrosion coatings,
fire-resistant coatings, and seacoast and under water coatings.
"Products" shall mean Supplier's total line of antimicrobial products
which uses Supplier's Property, or at any time during the Term of this
Agreement, formulated, conceived, processed, sold, offered for sale, treated,
promoted, blended, manufactured or otherwise handled by Supplier for the
designated end use in accordance with the Attachments hereto and such additions
or deletions thereto as the parties may hereafter mutually agree.
"Property" shall mean the Supplier's antimicrobial technology disclosed
in any of its U.S. Patent Applications and related foreign patent applications,
together with Supplier's antimicrobial technology being developed for which no
patent application has been filed or for which no patent has issued, and all of
Supplier's technical know-how and all enhancements, improvements and
modifications to such antimicrobial technology that are developed or otherwise
acquired by the Supplier before and during the Term of this Agreement for the
exclusive end use application in accordance with the Attachments hereto and such
additions or deletions thereto as the parties may hereafter mutually agree.
"Person" shall mean a natural person, corporation, business trust,
estate, trust, partnership, association, joint venture, government, governmental
subdivision or agency, or other legal or commercial entity.
"Sale" or "Sold" shall mean the sale, transfer, exchange or other
dispositions of Products whether by gift or otherwise.
"Territory" shall mean the entire world.
(2) Other Terms. Other capitalized terms shall have the
meanings ascribed to them elsewhere in this Agreement.
(B) EXCLUSIVE SALES AGREEMENT.
(1) Grant of Right. Supplier hereby grants to Purchaser and
its Affiliates an exclusive right to use, sell and market Products using the
Property, now and hereinafter developed by the Supplier, in the Field of Use in
the Territory during the Term of this Agreement as long as the conditions of
C(6)(a) below are satisfied and reasonable efforts and volume minimums are
maintained in accordance with Attachments II and III, as applicable.
(2) Notification. Purchaser shall notify Supplier promptly of
the circumstances of any unauthorized possession, manufacture, sale, use or
knowledge of any part of the Property.
(3) Implementation by Supplier.
a) Information. Supplier agrees to cooperate with
Purchaser to provide Purchaser and its Affiliates
with such information necessary to utilize the
Property and to provide Purchaser with technical
support as may be necessary for Purchaser to
effectively market the Products.
b) Pricing. Supplier shall develop a Property Price
List which shall set forth the sales price of the
Products to be purchased by Purchaser. An initial
Property Price List is contained in Attachments
II and III. Such prices include all royalty fees
to be paid by Purchaser, and no additional
royalty fee shall be paid by Purchaser, except as
provided in Section C(4) below. Supplier may
increase or decrease its prices on the Property
Price List, upon reasonable notice to Purchaser.
(4) Disclosure of Information.
(a) Sharing of Information. The parties agree to
disclose such information to one another to the
extent necessary to carry out the purposes of
this Agreement; provided, however that no party
shall be required to make any disclosure of any
information in contravention of any legal
obligation. Purchaser shall provide to Supplier,
upon Supplier's written request, copies of any
and all data and written reports relating to the
Property, in reasonable detail to permit
Supplier to continue research and development of
the Property.
(b) Confidentiality. For the Term of this Agreement and a period of ten (10)
years --------------- from the date of termination or expiration of this
Agreement for any reason whatsoever, and with respect to Confidential
Information which may be deemed a trade secret, for so long as such Confidential
Information remains a trade secret, each party hereto shall maintain as
confidential all Confidential Information heretofore or hereafter disclosed by
the other party, and shall not, directly or indirectly, disclose any such
Confidential Information to any Person, corporation or entity other than those
employees, agents, advisers, suppliers or consultants of such party whose duties
justify the need to know such Confidential Information and then only on the
basis of a clear understanding by such employees, agents, advisers, suppliers or
consultants of their obligation to protect the confidentiality of such
Confidential Information and to restrict the use of such Confidential
Information. The recipient party shall be liable hereunder for any unauthorized
disclosure by such employees, agents, advisers, suppliers or consultants.
Moreover, neither party shall use, directly or indirectly, for its benefit or
the benefit of any Affiliate or other person, corporation or entity any such
Confidential Information except for the purpose specified herein. If a party
hereto determines that a disclosure is required by law, that party shall give
the other party supplying such Confidential Information prior written notice in
order to provide such party an opportunity to seek an injunction or otherwise
attempt to keep such information confidential. Except as provided otherwise
herein, at the written request of the party supplying Confidential Information,
the other party shall destroy or return any and all such data and information
without retaining copies when this Agreement expires or terminates.
(c) Disclosure. Marketing the Property in the Field
of Use within the Territory during the Term of
this Agreement by Supplier without the express
written consent of the Purchaser is prohibited.
(5) Representation and Warranties; Indemnification.
(a) Representations and Warranties. Supplier
represents and warrants that (i) it possesses
the right to grant the rights hereunder and
that the exercise of rights hereunder and the
use of the Property in the Field of Use does
not infringe upon the rights of third parties;
and (ii) the Products delivered by it pursuant
to this Agreement shall be in accordance with
the Supplier's product specifications and other
technical information as published from time to
time.
(b) Indemnification. Supplier agrees to indemnify Purchaser and its Affiliates
--------------- against liabilities, losses, costs, damages and expenses
(including, without limitation, court costs and attorneys' fees) relating to any
action against Purchaser arising from a breach of the warranty above, provided,
however, such -------- ------- liabilities, losses, costs, damages and expenses
were not caused by Purchaser's or its Affiliates' enhancements, improvements, or
modifications to the Property or by Purchaser's or its Affiliates' acting in a
manner inconsistent with this Agreement, and provided Purchaser or its
Affiliates, as applicable, has promptly notified Supplier with respect to such
claim. Failure of Purchaser or its Affiliates to so notify Supplier promptly of
any such claim shall not relieve Supplier of its indemnification obligation
hereunder, except to the extent such failure has prejudiced or impeded
Purchaser's ability to defend or settle such claims.
(c) Infringement Action. If any notice is given to Purchaser, or any suit is
-------------------- brought against Purchaser by a third party, charging
infringement of a patent due to the using or selling of the Property, Purchaser
shall give Supplier prompt written notice thereof. The parties shall promptly
thereafter discuss the course of action to be followed and shall attempt to
decide by written agreement to either (i) make modifications which will avoid
infringement of such patent without significantly affecting the economics of
Purchaser's operations, or (ii) accept a license for Purchaser under such
patent, or (iii) contest the alleged infringement. If the alleged infringement
is contested, Supplier shall have control of any such litigation through counsel
of its choice. Purchaser shall cooperate with Supplier in any litigation arising
out of such alleged infringement, and shall, upon reasonable notice, make
available its employees, officers, directors or managers to testify when
requested by Supplier and shall make available to Supplier all relevant papers,
records, information, data and the like.
(d) Limitations on Liability Relating to
Property. EXCEPT FOR THE EXPRESS WARRANTIES
CONTAINED IN THIS AGREEMENT, SUPPLIER MAKES
NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, IN FACT OR IN LAW, RELATING TO THE
PROPERTY, ALL OF WHICH HEREBY ARE EXPRESSLY
DISCLAIMED.
(e) Prior Disclosure. Except for pilot study
information and information in any issued
patent, Supplier has not disclosed the
Property to any other party in the Field of
Use.
(C) EXCLUSIVE DISTRIBUTORSHIP AGREEMENT.
(1) Appointment of Distributor of Products. Supplier hereby
appoints Purchaser, for the Term hereof, as sole and exclusive distributor for
the use, sale and marketing of Supplier's Products in the Field of Use in the
Territory. Supplier shall not sell or cause to be sold, directly or indirectly,
or appoint any other distributor or agent for the sale of such Products in the
Territory, as long as the conditions in C(4) below are satisfied and reasonable
efforts are maintained and volume projections are met in accordance with
Attachments II and III, as applicable.
(2) Obligations of Purchaser. Purchaser agrees:
(a) To use best efforts in the sale of Products
in the Field of Use, maintain an effective
sales force and to provide professional
service to its customers. For purposes of
this Agreement, "best efforts" shall mean
that the Purchaser shall use efforts
consistent with those used by other
comparable companies in the United States;
(b) Not to make any representations or
warranties concerning Products, except with
the express prior written authorization of
Supplier;
(c) To provide annual sales forecasts and such
other reports as Supplier may reasonably
request from time to time;
(d) To use best efforts to promote and sell
Supplier's cleaning and maintenance products
to its customers;
(e) To have the Supplier's name and trademarks
included in all product labeling and advertising;
and
(f) To timely make all payments for product purchases and royalty fees due under
the provisions of Section 4 below.
(3) Shipments. Times and amounts of individual shipments will
be established by Purchaser's purchase orders. Supplier will make shipment in
steel or plastic drums or containers or in tank truck or tank cars, as requested
by Purchaser and agreed by Supplier, in accordance with Supplier's packaging and
transportation terms in effect at time of shipment. Title to and risk of loss of
Products shall pass to Purchaser at point of shipment.
(4) Payments by Purchaser.
(a) Price. Purchaser agrees to pay for all Products shipped by Supplier
hereunder ------ the prices shown on Supplier's price lists in effect at the
time of shipment, and in accordance with Attachments II and III, at the terms
and less volume or other discounts as agreed to by the parties. Price
reductions, including, but not limited to, volume and other discounts, shall be
effective immediately upon announcement. All sales terms are FOB (as defined in
INCOTERMS 1990, ICC Publication No. 460) Supplier's manufacturing facility
unless otherwise noted. For shipments outside of the United States, title to
Products will pass to Purchaser immediately upon entering the foreign country of
destination.
(b) Royalties.
(1) Signing Fee. Purchaser agrees to pay
Supplier a signing fee in the amount of
$50,000 within thirty (30) days of execution
of this Agreement.
(2) Running Royalty. Purchaser agrees to pay
to the Supplier a royalty equal to ten
percent (10%) of the net Selling Price of
any Product, Services, and Consulting Fees
earned by the Purchaser, less the cost of
the Products, on any all Products sold by
the Purchaser. The royalty payments will be
due at the conclusion of each quarter of the
fiscal year of the Purchaser commencing at
the conclusion of the first quarter of 1998.
(3) Annual Minimum Royalty. Commencing on
January 1, 1998 and for each calendar year during the
term of this Agreement, Purchaser agrees to make a
payment to Supplier together with its quarterly
report activities as required herein, equal to the
difference between the Annual Minimum Payment
indicated below, and the total of the running royalty
and other fees paid to Supplier during the Calendar
year. The payments will be made within forty-five
(45) days of the close of each quarterly period.
Calendar Year Annual Minimum
1/1/98 - 12/31/98 $75,000
1/1/99 - 12/31/99 $150,000
1/1/2000 - 12/31/2000 $200,000
1/1/2001 - 12/31/2001 $250,000
1/1/2002 - 12/31/2002 $300,000
1/1/2003 - 12/31/2003 $400,000
1/1/2004 - 12/31/2004 $500,000
1/1/2005 - 12/31/2004 $600,000
1/1/2006 - 12/31/2006 $700,000
1/1/2007 - 12/31/2007 $800,000
1/1/2008 - 12/31/2008 $1,000,000
(c) Other Payments.
Research and Development Fee. Purchaser
agrees to pay Supplier the sum of $50,000 over a
period of twenty-four (24) months from the date of
this Agreement, in equal payments per month, to be
used by the Supplier for research and development of
products, product improvement and patent execution
for the Purchaser.
(5) Payment Terms.
(a) Invoices. Purchaser agrees to pay Supplier's
invoices within thirty (30) days from the
date thereof.
(b) Royalties. Purchaser agrees to pay all
royalties under this Agreement with the
Fiscal Report, within forty-five (45) days
of the close of the quarterly period in
which the royalty payment is due.
(6) Financial Responsibility. Should the Supplier reasonably
be concerned with respect to the Purchaser's financial responsibility, Supplier
shall first provide written notice of such concerns to Purchaser, together with
a request for assurances by Purchaser that invoices shall be paid in accordance
with this Agreement. Should Purchaser fail to provide such assurances to
Supplier within fifteen (15) days after receipt of the request, Supplier shall
have the right, apart from any other legal remedy, to require Purchaser to pay
for Products in advance as ordered, and to cancel orders or delay shipments to
Purchaser or its customers for which no payment has been made, until payment is
made.
(7) Fiscal Reports. During the term of this Agreement,
Purchaser shall furnish, or cause to be furnished, to Supplier, written fiscal
reports on a quarterly basis showing (a) the gross selling price of all Products
sold by Purchaser during the reporting period and the net Selling Price less the
cost of the Products; and (b) royalties in Dollars, which have been accrued
hereunder in respect to such sales. Quarterly reports shall be due within
forty-five (45) days of the close of each quarter, except for quarterly reports
which close a calendar year which shall be due within ninety (90) days after
year end.
(8) Patent Execution. Supplier shall be primarily responsible
for all patent execution activities pertaining to the Product and the Field of
Uses. Supplier shall select counsel, maintain and handle any litigation,
interference, or any action pertaining to the validity, enforceability,
allowability or subsistence of all such patents.
(9) General Terms and Conditions.
(a) Term. Unless sooner terminated as otherwise provided in this Agreement, the
----- term of this Agreement shall commence the date of this Agreement and shall
continue in full force and effect for ten (10) years (the "Term"), and shall be
renewable for additional 10 year periods as agreed by the parties. This
Agreement may be automatically terminated by the Supplier upon the occurrence of
any one or more of the following events, provided that the Supplier has given
Purchaser written notice of the event within fourteen (14) days of the event's
occurrence and Purchaser has failed to cure the breach described in such notice
within sixty (60) days of receipt of such notice: (i) failure of the Purchaser
to make any payment required pursuant to this Agreement; (ii) failure of the
Purchaser to render reports to Supplier as required by this Agreement; and (iii)
the institution of any proceedings by the Purchaser under any bankruptcy,
insolvency, or moratorium law, or any assignment by Purchaser of substantially
all of its assets for the benefit of creditors. Upon termination for any reason,
this Agreement shall continue in force and effect as necessary for the parties
hereto to perform their respective obligations to third parties (existing at the
time of such termination) relating to this Agreement.
(b) Advertising. Nothing in this Agreement shall
be construed as conferring to Purchaser a
right to use in advertising, publicity, or
otherwise any trademark, trade name, trade
dress, or trade designation of Supplier
without Supplier's prior written consent.
(c) No Partnership. Purchaser shall be for all
purposes an independent, contractor, and not
an employee or agent of Supplier. Purchaser
assumes full responsibility for, and will
hold Supplier harmless against, all payments
required by any authority for, to or on
behalf of Purchaser's employees or agents.
Purchaser is not authorized or empowered in
any manner to accept service or other notice
addressed to it in any manner upon Supplier
or to submit Supplier to the jurisdiction of
any court or government agency whatever.
(d) Force Majeure. Failure of Supplier or Purchaser to order, to take, or to
make -------------- any one or more deliveries, if occasioned by any cause
beyond the reasonable control of either of said parties of any nature,
character, or kind whatsoever, shall not affect the remainder of this Agreement,
nor subject the one so failing to any liability to the other because thereof.
Without limiting the liability of the foregoing language, such causes shall
include fire, storm, flood, acts of God, war, explosion, sabotage, strikes or
other labor trouble, embargo, expropriation of plant, Product and/or raw
materials in whole or in part by Federal or State authorities, acts of the
Federal Government, any State or local Government, or any agency thereof, and
any other like occurrence causing extreme interference with the production or
transportation of Products.
(e) Information. Purchaser agrees that it will supply to all of its customers
----------- Product information as provided by Supplier. Purchaser will rely
solely on Supplier's representations regarding the safety, strength, storage,
environmental and other aspects of the Products. Such information includes
material safety data sheets, product specification bulletins and other
information appropriate to the customer's specific operations. Purchaser agrees
to place Supplier-approved labels on drums filled by Purchaser on Purchaser's
storage tanks and to recommend that its customers for Products use such labels
on all of their drums and storage vessels. Supplier will also supply additional
information for safe and legal shipping as needed by the Purchaser's customers.
(f) Reconsignment. If shipment is made in tank
cars or tank trucks furnished by Supplier,
Purchaser will unload said shipments
promptly after placement by carrier, and no
reconsignment of Supplier's tank cars or
tank trucks shall be made by Purchaser
without the written consent of Supplier.
(g) Insurance. Supplier shall maintain
appropriate general and product liability
insurance in respect of the sale of the
Products in North America and Mexico in an
amount to be agreed upon by the parties.
Supplier shall cause Purchaser to be named a
co-insured on such insurance policy and
shall, at the request of Purchaser, provide
certificates of insurance to such effect.
(h) Taxes. Each party shall be responsible for
income, franchise, gross receipts,
occupational, ad valorem property, and other
similar levies imposed on its income or
fixed assets, as well as any interest,
penalties or fines incurred in connection
with a tax or other levy that is for that
party's account hereunder, unless such
interest, penalty or fine is the result of
the fault or neglect of the other party.
(i) No Waiver. Failure or delay by either party to insist on the strict
---------- performance of any covenant, term, provision or condition hereunder,
or to exercise any right herein contained, or to pursue any claim arising
herefrom, will not constitute or be construed as a waiver of such covenant,
term, provision, condition, claim or right. Any waiver by either party will not
constitute or be construed as a waiver of such covenant, term, provision,
condition, claim or right. Any waiver by either party will not constitute or be
construed a continuing waiver of any subsequent default.
(j) Assignment. Neither Supplier nor Purchaser shall assign this Agreement nor
any ---------- rights or interests hereunder to any Person, firm or corporation
without the prior written consent of the other party, except that, without such
consent, Purchaser may assign this Agreement to any parent or subsidiary of
Purchaser or any subsidiary of its parent entity or to any corporation that
succeeds substantially to all of its business with respect to the Products by
merger, sale of assets, or otherwise. All of the terms and provisions of this
Agreement, whether so expressed or not, shall be binding upon, inure to the
benefit of, and be enforceable by the parties and their respective
representatives, successors and permitted assigns.
(k) Sub-Distributors. Purchaser shall be
entitled, without Supplier's prior consent,
to appoint sub-distributors or agents in
respect of the Products anywhere in the
Territory so long as sub-distributors comply
with the provisions of this Agreement.
(1) Governing Law. This Agreement shall be construed in accordance with the laws
of the State of Georgia.
(m) Arbitration. Any controversy or claim (whether such claim sounds in
contract, ----------- tort, discrimination, or otherwise) arising out of or
relating to this Agreement, or the breach thereof, or the commercial or economic
relationship of the parties hereto, shall be settled by binding arbitration in
Atlanta, Georgia in accordance with the Expedited Procedures (Rules 53-57) of
the Commercial Arbitration Rules of the American Arbitration Association
("AAA"). The arbitration shall be governed by the U.S. Arbitration Act, 9
U.S.C.ss.ss.1-16, to the exclusion of any provisions of state law inconsistent
therewith or which would produce a different result. A proceeding shall be
commenced upon written demand by Purchaser or Supplier to the other. The
arbitrator(s) shall enter a judgment by default against any party which fails or
refuses to appear in any properly noticed arbitration proceeding. The proceeding
shall be conducted by one (1) arbitrator, unless the amount alleged to be in
dispute exceeds two hundred fifty thousand dollars ($250,000), in which case
three (3) arbitrators shall preside. The arbitrator(s) will be chosen by the
parties from a list provided by the AAA, and if they are unable to agree within
ten (10) days, the AAA shall select the arbitrator(s). The arbitrators must be
experts in licensing and distributorship law. The arbitrators shall assess costs
and expenses of the arbitration, including all attorneys' and experts' fees, as
the arbitrators believe is appropriate in light of the merits of the parties'
respective positions in the issues in dispute. Each party submits irrevocably to
the jurisdiction of any state court sitting in Gwinnett County, Georgia or to
the United States District Court for the Northern District of Georgia for the
purposes of enforcement of any discovery order, judgment or award in connection
with such arbitration. The award of the arbitrator(s) shall be final and binding
upon the parties and may be enforced in any court having jurisdiction. The
arbitration shall be held in such place as set by the arbitrator(s) in
accordance with Rule 55.
(n) Entire Agreement; Modification. This Agreement constitutes the entire
---------------------------------- agreement between the parties (including
Attachments II and III) relating to the subject matter hereof. Any previous
agreements or representations, including those covering credit terms, freight
allowances and waivers of any other standard charges, are hereby declared void.
Any modification of or addition to this Agreement must be expressly agreed to by
the parties in writing, and may not be effected by purchase order, sales
confirmation, acknowledgment or similar forms.
(o) Enforceability. In the event any provision
of this Agreement shall be declared
unenforceable, such provision shall be
deemed severed from this Agreement and the
parties shall meet and negotiate in good
faith to replace such unenforceable
provision with another provision intending
to carry out the intent of the unenforceable
provision to the extent permitted by
applicable law.
(p) Notices. All notices, requests and other communications hereunder shall be
in ------- writing and shall be deemed given and effective five (5) business
days after being mailed first class, certified or registered mail, postage
prepaid, return receipt requested, addressed as set forth below, or two (2) days
after being sent by overnight courier, telex, or telecopy (by a machine that
indicates the telex or telecopy number of the machine to whom such communication
is sent and the receipt by such machine of such communication) to the address or
telecopy number first above written, or, in each case, at such other address or
to such other person as the party may specify in writing.
(q) Headings; Counterparts. The headings
contained in this Agreement are for
reference purposes only and shall not affect
in any way the meaning or interpretation of
this Agreement. This Agreement may be
executed in counterparts, each of which
shall be deemed an original but all of which
together shall constitute the same
agreement.
IN WITNESS WHEREOF, the parties hereto have executed this EXCLUSIVE
SALES AND DISTRIBUTORSHIP AGREEMENT as of the date first above written.
SUPPLIER: PURCHASER:
BIOSHIELD TECHNOLOGIES, Sanitary Coating Systems, LLP
INC., a Georgia corporation a Florida corporation
By: __________________________________ By: ___________________________________
Title: _________________________________Title: _________________________________
[CORPORATE SEAL] [CORPORATE SEAL]
ATTACHMENT I
General Terms and Conditions of Distributorship Agreement
A. Nothing in this Agreement shall be construed as conferring a right to
use in advertising, publicity, or otherwise any trademark, trade name,
trade dress, or trade designation of BioShield.
B. Purchaser shall be for all purposes an independent contractor, and not
an employee or agent of BioShield. Purchaser may not bind BioShield on
any matter. Purchaser assumes full responsibility for, and will hold
BioShield harmless against, all payments required by any authority for,
to or on behalf of Purchaser's employees or agents. Purchaser is not
authorized or empowered in any manner to accept service or other notice
addressed to it in any manner upon BioShield or submitting BioShield to
the jurisdiction of any court or government agency whatever.
C. Failure of Purchaser to order or to take, or of BioShield to make, any one or
more deliveries, if occasioned by any cause beyond the reasonable control of
either of said parties of any nature, character, or kind whatsoever, shall not
affect the remainder of this Agreement, nor subject the one so failing to any
liability to the other because thereof and, Purchaser may purchase else where
the product required by it during the period or periods of BioShield's failure
to make deliveries if occasioned by any such cause or causes. Without limiting
the liability of the foregoing languages, such causes shall include: fire,
storm, flood, act of God, war, explosion, sabotage, strike or other labor
trouble, shortage of labor and/or raw materials, utilities, fuel and/or energy,
embargo, car shortage, accident, expropriation of plant, Product and/or raw
materials in whole or in part by Federal or State authority, inability to secure
machinery and/or other equipment for the manufacture of Product, acts of the
Federal Government, any State or local Government, or any agency thereof and,
any other like cause interfering with the production, transportation or
consumption of Product.
D. In the event of a shortage or anticipated shortage of Product and/or delay in
shipment or delivery occasioned by any of the causes before mentioned or any
like causes, BioShield will endeavor to allocate equitably the available Product
among its customers and distributors, to BioShield's own internal use and to the
use of its affiliates. In the case of a shortage or anticipated shortage of
labor, raw materials, utilities, fuel or energy. BioShield will endeavor to
allocate equitably the available labor, raw materials, utilities, fuel and
energy to use in the product covered by this contract to BioShield's own
internal use, to the use of its affiliates and to the use in other products. The
equity of any such allocations made by BioShield in the exercise of its
discretion shall be conclusive and binding upon Purchaser. BioShield shall not
be obligated to make up any deficiencies hereunder due to any such cause except
by written mutual agreement of the parties hereto.
E. Purchaser agrees that it will supply to all of its customers Product
information which impacts upon the medical, safety, and environmental
aspects of handling, storing and using such Products. Such information
includes material safety data sheets, product specification bulletins
and other information appropriate to the customer's specific
operations. Purchaser further agrees to place proper BioShield, or
BioShield approved, labels on drums filled by Purchaser, on Purchaser's
storage tanks and to recommend that its customers for Products use such
labels on all of their drums and storage vessels. Purchaser will also
supply additional information for safe and legal shipping as needed by
his customers for Product.
F. If shipment is made in tank cars or tank trucks furnished by BioShield,
Purchaser will unload said shipments promptly after placement by
carrier and no reconsignment of BioShield's tank cars or tank trucks
shall be made by Purchaser without the written consent of BioShield.
Tank cars or tank trucks held by Purchaser in excess of BioShield's
published schedule of demurrage free time will be subject to demurrage
at rates in Attachment II and III hereto.
G. BIOSHIELD MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
NO WARRANTY OF MERCHANTABILITY, EXCEPT THAT THE PRODUCT SOLD HEREUNDER
SHALL BE FROM BIOSHIELD'S STANDARD PRODUCTION THEREOF AND MEET
BIOSHIELD'S PUBLISHED SPECIFICATION; AND, PURCHASER ASSUMES ALL RISK
AND LIABILITY FOR RESULTS OBTAINED BY THE USE OF THE PRODUCTS COVERED
BY THIS AGREEMENT, WHETHER USED SINGLY OR IN CONJUNCTION WITH OTHER
MATERIALS EXCEPT AS PROVIDED IN SECTION B(6) OF THIS AGREEMENT..
H. NO CLAIM OF ANY KIND, WHETHER AS TO THE PRODUCT DELIVERED OR FOR
NON-DELIVERY OF THE PRODUCT, OR OTHERWISE, SHALL BE GREATER IN AMOUNT
THAN THE PURCHASE PRICE OF THE PRODUCT IN RESPECT OF WHICH SUCH DAMAGES
ARE CLAIMED; AND, FAILURE TO GIVE NOTICE OF CLAIM WITHIN THIRTY (30)
DAYS FROM DATE OF DELIVERY, OR THE DATE FIXED FOR DELIVERY,
RESPECTIVELY, SHALL CONSTITUTE A WAIVER BY THE PURCHASER OF ALL CLAIMS
WITH RESPECT THERETO. IN NO EVENT WILL BIOSHIELD BE LIABLE FOR LOSS OF
PROFITS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF PURCHASER OR
PURCHASER'S CUSTOMERS EXCEPT AS PROVIDED IN SECTION B(6) OF THIS
AGREEMENT.
I. Any increase of the costs to manufacture, or to store, transport or handle at
BioShield's or its affiliates' facilities, either the products sold hereunder or
materials used in the manufacture of products sold hereunder, whether paid by
BioShield or an affiliate and caused by any increase in existing or the
imposition of any new taxes, excises, duties, environmental, superfund (excise),
or other governmental charges of any kind (imposed by any national, state or
municipal government or any agency or political subdivision thereof) shall be
added to the sales price and paid by Purchaser. Further, any taxes, excises,
duties, environmental, superfund (excise), or other governmental charges of any
kind imposed upon the sale or purchase, transportation, loading or off-loading,
storage, importation or use of products sold hereunder, or any services rendered
in connection thereof, shall be paid by Purchaser. Each party shall, however, be
responsible for income, franchise, gross receipts, occupational, ad valorem
property, AMT superfund, and other similar levies imposed on its income or fixed
assets, as well as any interest, penalties or fines incurred in connection with
a tax or other levy that is for that party's account hereunder, unless such
interest, penalty or fine is the result of the fault or neglect of the
other party.
Purchaser shall furnish to BioShield all exemption certificates for
which it is entitled or authorized to issue with respect to any tax
imposed on the manufacture, sales, purchase, transportation, handling
or use of the product sold hereunder.
J. Failure or delay by either party to insist on the strict performance of
any covenant, term, provision or condition hereunder, or to exercise
any option herein contained, or to pursue any claim arising herefrom,
will not constitute or be construed as a waiver of such covenant, term,
provision, condition, option, claim or right. Any waiver by either
party will not constitute or be construed as a waiver of such covenant,
term, provision, condition, option, claim or right. Any waiver by
either party will not constitute or be construed a continuing waiver of
any subsequent default.
K. This Agreement shall not be transferred or assigned by either party
without the written consent of the other party, except that BioShield
may transfer or assign this Agreement to a subsidiary or affiliate of
BioShield, or to a successor to the portion of BioShield's business
covered by this Agreement.
L. Notice to either party under any provision of this Agreement shall be
deemed good and sufficient if sent by registered or certified mail to
the last known post office address of such party, and shall be
effective upon the date of such mailing, otherwise on receipt.
M. This Agreement shall be construed in accordance with the laws of the state of
Georgia.
N. This Agreement constitutes the entire contract between the parties concerning
sale or purchase of Product. Any previous agreements or representations
including those covering credit terms, freight allowances and waivers of any
other standard charges, are hereby declared void. Any modification of or
addition to this Agreement must be expressly agreed to by the parties in
writing, and may not be effected by purchase order, sales confirmation,
acknowledgment or similar forms; provided, however, that BioShield may from time
to time modify Attachments I, II and/or III, which Attachments are incorporated
into this Agreement by reference, and the modified terms and conditions of said
Attachments will apply to this Agreement, from and after the date set forth in
the notice of modification.
Attachment II
PRODUCT SUPPLEMENT
Purchaser: Date of this Supplement: 10/00/97
Superseded Supplement Date: 00/00/00
Date of Purchaser Agreement: 10/00/97
1. Products
AM 500
SB 3651 P
AM 36.01
SP8260L
Estimated Annual Requirements
1998 - 2008 See Agreement
2. Purchaser's "Territory for the above products are "The World".
3 Purchaser may resell Products into the following markets: Coatings Industry
4. List Price (all 5 gallon pales add $6.00)
AM500 SB 3651 P AM 36.01
-----
5 Gallon Pale $6.50/LB 5 Gallon Pale $24.00LB 5 Gallon Pale $21.00/LB
1-4 Drums $6.00/LB 1-4 Drums $22.00/LB 1-5 Drums $18.00/LB
5-49 Drums $5.50/LB 5-49 Drums $21.00/LB 5-49 Drums $17.00/LB
50-80 Drums $5.00/LB 50-80 Drums $20.50/LB 50-80 Drums $16.00/LB
SP8260C
0-20 drums $35.00/LB.
21 + drums $33.00/LB.
5. Purchaser's volume discounts from list price are as follows:
1-48 drums - 10% Discount
49 + drums - 35 % Discount
Received on: _________________________ Purchaser:_________________________
By:_________________________________
