The agreement:
Purchaser Agreement
This Purchaser Agreement dated this 1st day, November, 2006 by and between HydroFlo Water Treatment, Incorporated, a North Carolina corporation located at 2501 Reliance Ave. Apex, NC 27539 (the “Company”) andShine Holdings, Inc. a North Carolina corporation located at 2500 Regency Parkway, Suite 224, Cary, NC 27511 (the “Purchaser”).
RECITALS
A. The Company is engaged in the manufacture and sale of water treatment products, certain of which products are more particularly described in the attached Schedule A , as the same may be hereafter amended by the mutual consent of the parties (collectively and including any other products listed in the Company’s catalogues from time to time, the “Products”); and
B. The Purchaser engages to sell such Products to the end-users listed on the attached Schedule B in connection with those end-users’ operations located in the geographic areas also listed on the attached Schedule B , as the same schedule may be hereafter amended by the mutual consent of the parties (the “Customers”); and
C. The Company is willing to manufacture and supply Products to the Purchaser and to appoint the Purchaser as a distributor of the Products on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual promises and covenants set forth herein, the parties hereby agree as follows:
1. DISTRIBUTION RIGHTS . Subject to the terms and conditions set forth herein, the Company hereby appoints the Purchaser as a distributor of the Products to the Customers for the term of this Agreement as provided in Section 2 below. The Purchaser agrees that it shall not, directly or indirectly, offer, market, sell or otherwise deal in any products substantially similar in design or usage to the Products for sale to the Customers. No right or license to manufacture the Products are granted to the Purchaser by this Agreement.
2. TERM . This agreement shall commence on October 01, 2006 and, unless sooner terminated as provided in Section 7, shall continue in full force and effect for a period of one (1) year (the “Term”). This agreement shall be self renewing unless otherwise terminated.
3.
DUTIES OF THE PURCHASER .
(a)
The Purchaser shall use his best efforts to place the Products in operational use.
(b)
Guaranteed Units to be purchased according to the following schedules and minimums and exact pricing and equipment to be determined by site conditions to be described in a site characterization form (attached):
(.1) Year one beginning 10/01/06: Purchaser warrants a guaranteed minimum purchase for use in Shine operation program of 10 systems, 100 GPM or larger Prior to 9/30/07.
(.2) Year two beginning 10/01/07: Purchaser warrants a guaranteed minimum purchase for use in Shine operation program of 12 (twelve) systems 100 GPM or larger prior to 9/30/08.
(.3) Year three beginning 10/01/08: Purchaser warrants a guaranteed minimum purchase for use in Shine operation program of 15 systems 100 GPM or larger prior to 9/30/09.
(.4) Year four beginning 10/01/09: Purchaser warrants a guaranteed minimum purchase for use in Shine operation program of 20 systems 100 GPM or larger prior to 9/30/10.
(.5) Year five beginning 10/01/10: Purchaser warrants a guaranteed minimum purchase for use in Shine operation program of 25 systems, 100 GPM or larger prior to 9/30/11.
(c)
The Purchaser shall comply with all appropriate federal, state, county and local laws, rules and regulations pertaining to this Agreement and/or the acquisition, receipt, holding, selling, distribution or advertising of the Products.
(d)
Minimum quantities ordered begin with October 31, 2006 and continue monthly for the next twelve months ending September 2007. Failure to adhere per the terms specified herein or failure to order during any three consecutive months shall be considered breach of contract with remedies described in paragraph 7.
(e)
The Purchaser shall, at its own expense, make, execute or file such reports and obtain such licenses as are required by law or any public authority with respect to this Agreement and/or the acquisition, receipt, holding, selling, distributing or advertising of the Products.
(f)
The Purchaser shall be solely responsible for the declaration and payment of all local, state and federal taxes as may accrue because of the Purchaser's activities in connection with this Agreement.
(g)
The Purchaser shall maintain as confidential and proprietary all non-public information and details concerning (i) this Agreement per the attached confidentiality and non-disclosure agreement; (ii) the Products and (iii) the Company’s Marketing and Compensation Program. Notwithstanding the foregoing, either party to this Agreement the Purchaser may disclose any otherwise confidential information if the disclosure is required by a court or governmental authority.
(h)
The Purchaser shall exercise due diligence to keep the Company informed, through regular written reports, with respect to any observations or complaints received from any of the Customers with regard to any of the Products.
(i)
The Purchaser shall bear its own costs and expenses incurred in performing its obligations hereunder.
(j)
All press related to HydroFlo Inc or its portfolio companies shall be reviewed and approved by HydroFlo Inc prior to being released.
(k)
Special orders of smaller units less than 100 GPM are available upon request but will not effect miminum order size.
(l)
A 10% discount will be granted for volume purchases and the adjustment will be made at the end of the agreement term on a yearly basis.
DUTIES OF THE COMPANY.
(a)
The Company shall design systems appropriately to meet the needs for station based on conditions provided by the purchaser.
(b)
The Company shall be involved in the start-up of the system and training of the operations personnel.
(c)
The Company will make available names and telephone numbers of all PLUS system owners.
(d)
The Company will make available any and all “white” papers customarily written about the PLUS system.
4.
ORDERS AND DELIVERY. The Purchaser shall qualify submitted purchase orders for Products signed by a duly authorized officer and containing complete information regarding Product price, item number, quantity, requested delivery dates, shipping instructions and shipping address (each, a “Purchase Order”). Promptly, following receipt of Purchase Order, the Company shall acknowledge and confirm the order. Confirmed Purchase Orders shall be governed by the terms set forth herein to the exclusion of any additional or contrary terms set forth in the parties’ standard sales transaction forms.
5.
TERMS OF SALE AND PAYMENT .
(a)
During the Term of the contract, the Purchaser shall receive net pricing for each Product, less shipping costs. The Company shall furnish any revised price list to the Purchaser with a 90 day advanced notice of price increases. The list price shall be adjusted from time to time at the discretion of the Company.
(b)
All equipment produced by the company is sold f.o.b. the company’s office in Apex, NC.
(c)
The Customer shall pay for the Products in U.S. Currency by wire transfer or other payment according to the following payment plan:
(i) Thirty three percent (33%) due upon order.
(ii) Thirty three percent (33%) due upon design completion and component order.
(iii) Remaining Balance will be due prior to shipment.
(.2) Freight charges shall be billed COD to the purchaser.
6. LIMITED TRADEMARK LICENSE . During the Term, the Company grants to the Purchaser a limited, non-exclusive, royalty-free right and license to use, but not to register the name and trademark “HydroFlo Water Treatment.” Except as provided in this Section 6, the Purchaser agrees not to utilize the HydroFlo logo, or HydroFlo Water Treatment trade name or trademarks in any way or to name executives, employees, members or affiliates in any advertising format or medium without the prior express written consent of HydroFlo Water Treatment, Inc.
7. TERMINATION . In the event the Purchaser breaches any provision of this Agreement, the Company may terminate this Agreement immediately and shall have the right to seek all other available remedies. Upon the termination of this Agreement, the Company will complete the manufacture of all in-process Products subject to a Confirmed Purchase Order and the Purchaser completing the terms stated in 5. C. of this agreement, as provided in Section 4 and the Purchaser will purchase the same at the prices then in effect.
8. STATUS OF THE Purchaser . The Purchasers duly organized and is qualified and has all consents, permits and authorizations required to perform its obligations under this Agreement.
9. RELATIONSHIP OF THE PARTIES . The Purchaser acknowledges that it is an independent contractor. Nothing in this Agreement, its provisions or the transactions, obligations and relationships contemplated hereby shall constitute either party to this Agreement as the agent, employee or legal purchaser for the other party hereto for any purpose whatsoever, nor shall any party to this Agreement hold itself out as such. This Agreement does not create and shall not be deemed to create a relationship of partners, joint ventures, associates or principal and agent between the parties hereto, and the parties acknowledge that each is acting as a principal hereunder. This Agreement does not constitute either the sale of a franchise or a dealership to the Purchaser.
10. AMENDMENT . This Agreement may only be amended by mutual written agreement of the parties.
11. ENTIRE AGREEMENT . It is expressly agreed by the Parties that there are no verbal or written representations, understandings, stipulations, agreements, or promises relating to the subject matter of the Agreement not incorporated in writing in the Agreement. This Agreement constitutes the entire Agreement between the Parties hereto, and it cannot be amended except as provided in Section 10 above.
12. BINDING AGREEMENT; GOVERNING LAW AND VENUE . The Purchaser acknowledges that it has read and understands this Agreement and that this Agreement shall become binding upon the Purchaser upon execution by both parties. This Agreement shall be governed by the laws of the State of North Carolina. It is expressly agreed by the Parties that any action or other proceeding initiated by one party to this Agreement against the other party relating to or for the enforcement of this Agreement shall be brought under arbitration to be conducted in compliance with the rules of the American Arbitration Association in Raleigh, North Carolina.
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