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Exhibit
10.1
EXCLUSIVE DISTRIBUTION
AGREEMENT
AGREEMENT (the
“Agreement”) dated
, 2007 among R. T. VANDERBILT COMPANY, INC. and VANDERBILT
INTERNATIONAL, Sarl, corporations having an office at 30 Winfield
Street, Norwalk, Connecticut, U.S.A. (“Vanderbilt”);
and Platinum Research Organization, Inc., a Delaware Corporation,
having an office at 2828 Routh Street, Suite 500, Dallas, TX 75201
(“PRO” ).
W I T N E S S E T
H:
WHEREAS, PRO produces
and sells certain Products (as hereinafter defined), and wishes to
sell such Products to Vanderbilt and to engage Vanderbilt as its
exclusive distributor for the sale of Products in the Territory as
hereinafter defined; and
WHEREAS, Vanderbilt
wishes to purchase the Products and to act as such exclusive
distributor and/or reseller of such Products under the terms and
conditions herein.
NOW, THEREFORE, in
consideration of the premises and of the mutual covenants and
obligations contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
As used herein, the terms set
forth below shall have the meanings given to them there.
1.1
“Products” shall mean those products listed in
Exhibit A which Exhibit may be modified from time to time by mutual
written agreement of the parties.
1.2
“Territory” shall have the meaning described in
Exhibit B.
1.3
“Patents” shall mean patents, pending patents,
claims of patent, design patents, pending design patents, or claims
of design patent owned by PRO relating to the Products and in
effect in the Territory.
1.4 (a)
“Know-How” shall mean all production procedures,
all design, engineering, production, manufacturing and other
technical data, information, specifications, designs, methods,
processes, systems, test reports, guidelines and trade secrets
relating to the manufacture, use and sale of the Products, which
either PRO or Vanderbilt has separately acquired or may acquire
from time to time and reasonably considers confidential, which are
not generally known, and which are of material commercial
value.
(b) “Shared
Know-How” shall mean Know-How that is reasonably required
to assist Vanderbilt in the marketing, sales and support of the
Product.
1.5
“Trademarks” and “Trade Names” shall
mean the trade names and trademarks associated with the Products as
set forth in Exhibit A, attached hereto and made a part hereof
which Exhibit may be modified from time to time by mutual written
agreement of the parties. PRO agrees to follow reasonable
Vanderbilt requirements regarding Vanderbilt trademarks which are
listed on Exhibit A or as may be added to Exhibit A from time to
time by mutual agreement.
1.6 “Confidential
Information” shall mean Know-How and other confidential
or proprietary information regarding PRO’s or
Vanderbilt’s business or any aspect of this Agreement,
including, without limitation, customer lists and financial,
marketing and other information which either party has acquired or
may acquire from time to time from the other party with the
understanding that such information and/or data are confidential.
Notwithstanding the above, “Confidential Information”
shall not include information: i) which the receiving party can
demonstrate was in its possession at the time of disclosure and was
not acquired by the receiving party directly or indirectly from
disclosing party on a confidential basis, ii) which becomes
available to receiving party on a non-confidential basis from a
source other than disclosing party (whether directly or indirectly)
and which source to the best of receiving party’s knowledge
did not acquire the information on a confidential basis, or iii)
which is approved for release or use without restriction by written
authorization of an officer of the Party owning the Confidential
Information. If Confidential Information is required to be
disclosed by any federal or state law, rule or regulation or by any
applicable judgment, order or decree of any court or governmental
body or agency having jurisdiction the Party required to disclose
the Confidential Information will give the Party owning the
Confidential Information notice, to the extent reasonably
practicable, of the proposed disclosure so as to afford the Party
owning the Confidential Information an opportunity to seek to
prevent its disclosure. The parties hereto agree to keep
Confidential Information confidential and to continue to be bound
by the terms and conditions of their September 1, 2005
Confidentiality Agreement.
1.7
“Affiliate” shall mean any other entity
(a) that directly or indirectly controls, or is under common
control with, or is controlled by one of the Parties or (b) is
at least 50% beneficially owned by one of the Parties. As used in
this definition, “control” (including with its
correlative meanings, “controlled by” and “under
common control with”) means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of an entity, (whether through ownership of
securities or partnership or other ownership interests, by
contract, or otherwise).
ARTICLE II
GENERAL
APPOINTMENT
2.1 Appointment. PRO
hereby appoints Vanderbilt as its exclusive, worldwide distributor
for the sale, purchase and resale of the Products into the
Lubricating Grease Market in the Territory subject to the terms and
conditions of this Agreement. Vanderbilt accepts the appointment
and agrees to purchase the Products from PRO under the terms and
conditions of this Agreement.
2.2 Relationship of the
Parties. The relationship between PRO and Vanderbilt is that of
independent contractors and not that of employer-employee or
principal-
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agent. Vanderbilt shall not be the agent
or legal representative of PRO, nor shall PRO be the agent or legal
representative of Vanderbilt. Neither PRO nor Vanderbilt shall have
the right, power or authority to assume or undertake any obligation
whatsoever or make any representation on behalf of the other unless
authorized to do so in writing.
ARTICLE III
GENERAL TERMS OF
DISTRIBUTORSHIP
3.1 Best Efforts.
Vanderbilt agrees to use its best efforts to promote the sale of,
and to solicit and secure orders for the Products in the Territory
and, subject to the provisions of Section 4.4 below and to
purchase the Products from PRO. PRO agrees to sell the Products to
Vanderbilt as PRO’s exclusive distributor of Products in the
Territory.
3.2 Promotion and
Advertising. PRO shall, at its own expense, supply Vanderbilt
with up-to-date samples, Shared Know-How and technical data,
promotional material and service information as is appropriate in
order for Vanderbilt to conduct laboratory and market tests and to
promote and develop sales of the Products. Vanderbilt agrees not to
use any such provided material, including Share Know-How for any
purpose other than in furtherance of its obligations and
undertakings as set forth in this Agreement.
3.3 Compliance. PRO
shall, at its own expense, provide Vanderbilt with all relevant
technical information known to PRO as a result of industry standard
due diligence and necessary to comply with all statutes, rules and
regulations relating to the sale of the Products in the Territory.
PRO also agrees, at its own expense, that it will promptly conduct
all required testing of the Products and obtain all required
registrations of the Products in all pertinent marketplaces for the
Products, including, but not limited to, in order of preference,
the following: United States, Canada, European Union, Japan,
Australia, China, Korea and the Philippines. Such testing and
registration of the Products shall be completed no later than two
(2) years from the execution of this Agreement.
3.4 Promotion and
Publicity. (a) All promotions and advertising of the
Products shall be formulated and implemented by Vanderbilt at its
own cost. Vanderbilt agrees to consult with PRO before implementing
any such promotion or advertising campaign and to make any
reasonable changes suggested by PRO, provided that PRO agrees to
share the costs of any such revisions. All such promotional
material shall be accurate and shall be consistent with promotional
material used by PRO in its own advertising and promotional
campaigns. PRO shall provide Vanderbilt with its publicity and
promotional material with respect to the Products, which Vanderbilt
shall use its best efforts to include in its promotions and
advertising; provided, however, that such material shall not be
changed in any material respect without the prior written consent
of PRO. Vanderbilt will not materially alter the packaging of the
Products without the prior consent of PRO, and each party will
cause the labeling of Products sold hereunder to comply with all
applicable regulations governing such labeling from time to time;
provided, however, Vanderbilt may add any labeling that it
determines is required under applicable law, or otherwise necessary
to meet legal or customer requirements.
(b) PRO shall use its best
efforts to provide Vanderbilt and/or its customers with all such
information, Shared Know-How, and technical assistance with respect
to the application of the Products as they reasonably
request.
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3.5 Non-Infringement.
Vanderbilt shall not advertise, promote or sell any Product which
infringes any Patent, Trademark or copyright, or which violates any
trade secret of PRO. The provisions of clause 3.5 shall not apply
until such time as Vanderbilt has knowledge, or reasonably should
have knowledge, that a Patent, Trademark, copyright or trade secret
is being violated in the manufacture or use of a particular
product.
ARTICLE IV
PRICE, PAYMENT AND
DELIVERY TERMS
4.1 General Terms. PRO
agrees to sell the Products to Vanderbilt, and Vanderbilt agrees to
purchase the Products from PRO on the terms and conditions set
forth in this Agreement.
4.2 Price. Vanderbilt
shall purchase the Products for its own account from PRO at the
prices in effect, as reflected in Exhibit A at the time PRO accepts
Vanderbilt’s order. Initial prices for the Products are
listed in Exhibit A. Prices may be changed at any time by PRO on
ninety (90) days’ prior written notice to Vanderbilt.
Exhibit A may be revised as necessary to reflect the implementation
of mutually agreed upon price changes.
4.3 Payment. Invoices
for sales of Products hereunder shall be prepared by PRO and
presented to Vanderbilt at the time of shipment, on the basis of
PRO’s weighing of the Products covered thereby, subject,
however, to Vanderbilt’s confirmation of such weights upon
delivery of the Products; and in the event of any material
discrepancy between PRO’s weighing and Vanderbilt’s
confirmation thereof, whether due to shrinkage or ordinary
deterioration during shipment, or otherwise, the parties shall
negotiate in good faith to resolve such discrepancy and make any
required adjustment to PRO’s invoice. In the event that the
parties cannot, in good faith, agree to an adjustment, the parties
agree to accept the average of the two conflicting weights. Subject
to any such adjustment, Vanderbilt shall pay each invoice in U.S.
dollars within thirty (30) days after receipt of the Products
by (i) Vanderbilt, or (ii) its warehouse, or
(iii) its customer, whichever occurs first.
4.4 Placement of Orders
and Shipping. PRO shall ship supplies of the Products within
thirty (30) days of receipt of written orders therefore from
Vanderbilt. If PRO is unable to ship within such period, it will
promptly notify Vanderbilt informing Vanderbilt of PRO’s
anticipated shipping date.
4.5 Delivery. Delivery
of the Products to Vanderbilt shall be FOB Vanderbilt’s
warehouse, transportation prepaid by PRO. Title to and risk of loss
of Products shall pass upon delivery to Vander
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