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EXCLUSIVE
LICENSE AND DISTRIBUTION AGREEMENT
This EXCLUSIVE LICENSE AND DISTRIBUTION AGREEMENT (this
"Agreement") is made and entered into this 20
th day of June, 2007, by and between:
I.E.T., INC.
a Nevada corporation with its principal place of business at
4235 Commerce St., Little River, SC 29566 (hereinafter referred to
as "IET"),
and
BENCHMARK ENERGY PRODUCTS, L.P.
a Texas limited partnership with its principal place of business
at 2801 Post Oak Blvd., Suite 400, Houston, Texas 77056
(hereinafter referred to as "Benchmark").
RECITALS
IET is the manufacturer of electro-chemical activation ("ECA")
equipment which it markets and sells under its EcaFlo®
trademark, as well as the environmentally-friendly solutions
produced by that equipment-anolyte (a broad-spectrum,
non-hazardous, neutral pH natural germicidal agent) and catholyte
(an anti-oxidizing, mildly alkaline solution useful as a degreaser
or detergent).
Benchmark and its affiliated companies are manufacturers and
suppliers of, among other things, specialty chemicals, compounds
and additives developed for industrial and oilfield applications,
including, but not limited to, cross-linkers, polymers, polymer
slurries, and other additives for oil and gas well drilling,
completion, and stimulation fluids.
IET desires to license and appoint Benchmark as its exclusive
agent for the marketing, sale and distribution of IET's EcaFlo®
equipment and EcaFlo® solutions for use in Oilfield
Applications (as hereinafter defined), and Benchmark desires to
accept such appointment.
NOW THEREFORE, in consideration of the mutual covenants,
representations and warranties hereinafter set forth, IET and
Benchmark agree as follows:
ARTICLE 1 - GRANT OF EXCLUSIVE MARKETING AND DISTRIBUTION RIGHTS
TO IET EQUIPMENT AND ECAFLO® SOLUTIONS; ASSIGNED OILFIELD
ACCOUNTS:
1.1 IET
hereby grants to Benchmark the exclusive, world-wide right,
license and authority to market, sell and distribute for use in
the manufacture of fluids and solution for use in Oilfield
Applications:
1.1.1 those EcaFlo® ECA units
currently manufactured by IET and more particularly described on
Addendum A attached hereto (such units being hereinafter
collectively referred to as the "Existing ECA Equipment");
1.1.2 those electrolytic
(replacement) cells used in the Existing ECA Equipment and more
particularly described on Addendum B attached hereto, and/or
any new, different or additional electrolytic (replacement) cells
IET hereafter develops, whether for use in the Existing ECA
Equipment or in any New ECA Equipment (as hereafter defined)
developed by IET and added to the terms of this Agreement as
provided in Article 2 below (collectively "Replacement Cells");
and
1.1.3 all components, replacement parts
and other materials necessary to service, repair and maintain any
Existing ECA Equipment or New ECA Equipment sold to and/or through
Benchmark, including, but not limited to, the components,
replacement parts and other materials more particularly described
on Addendum C attached hereto (collectively "Spare
Parts"),
For the purposes of this Agreement, the term "Oilfield
Applications" shall mean and include the treatment and/or
conditioning of (i) the "make-up waters" used in oil and gas well
fracturing fluids, (ii) the "produced waters" generated in
connection with the production of oil and natural gas, and (iii)
other fluids and/or fluid systems employed in the drilling,
completion/construction and/or stimulation of oil and gas wells or
in the production of oil and natural gas.
1.2 IET also hereby grants to
Benchmark the exclusive, world-wide right, license and
authority to manufacture, market, sell and distribute for use
in Oilfield Applications the anolyte and catholyte solutions
(hereinafter "EcaFlo® Solutions") produced by the Existing ECA
Equipment or by any New ECA Equipment developed by IET and added
to the terms of this Agreement as provided
in Article 2 below; provided, however, that
those existing customers and accounts of IET more particularly
identified on Addendum D attached hereto which are currently
using Existing ECA Equipment to produce EcaFlo® Solutions for
use in Oilfield Applications (the "Existing IET Oilfield
Customers") shall be and remain free to continue doing so.
1.3 IET also hereby grants to
Benchmark the exclusive world-wide right, license and authority
to market, sell and distribute Existing ECA Equipment, New ECA
Equipment, Spare Parts, and Replacement Cells to the Existing IET
Oilfield Customers. If (and only if) an Existing IET Oilfield
Customer refuses to acknowledger Benchmark's exclusive distribution
rights, and insists upon purchasing ECA Equipment, New ECA
Equipment, Spare Parts, and/or Replacement Cells directly form IET,
then !ET shall pay and remit to Benchmark, with respect to any and
all such sales, a commission equal to the difference between the
amount for which Benchmark could have purchased same under the
terms of this Agreement and the then current IET suggested retail
price thereof. IET will use its best efforts to cause all Existing
IET Oilfield Customers to make all ECA Equipment, New ECA
Equipment, Spare Parts, and Replacement Cell purchases from
Benchmark from and after the Effective Date.
1.4 Benchmark shall not
appoint any sub-distributor of Existing ECA Equipment, New ECA
Equipment, Spare Parts, Replacement Cells, or EcaFlo® Solutions
without the prior written consent of IET, which consent shall not
be unreasonably withheld, conditioned or delayed.
ARTICLE 2 - ECA EQUIPMENT LISTS; ADDITIONAL ECA EQUIPMENT:
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2.1
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The IET equipment subject to the terms of this
Agreement shall include not only
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the Existing ECA Equipment initially identified
on Addendum A, the Replacement Cells initially identified on
Addendum B, and the Spare Parts identified on Addendum
C, but also such additional and/or other ECA units, spare and
maintenance parts and/or Replacement Cells as Benchmark and IET
may, from time to time, agree by written amendment to this
Agreement (as hereinafter provided) to include under the terms
hereof.
2.2 IET shall advise
Benchmark, in writing, of any new, different or additional ECA
equipment (including any modifications of the Existing ECA
Equipment) (New ECA Equipment) and of any new, different or
additional Replacement Cells (such New ECA Equipment and any new,
different or additional Replacement Cells being hereinafter
collectively referred to as "New IET Equipment") which IET
hereafter develops, specifying in such notice (a "New Equipment
Notice") the price(s) at which IET would be willing to include same
under the terms of this Agreement. Within sixty (60) days of its
receipt of a New Equipment Notice (or such longer period, not to
exceed an additional sixty (60) days, as Benchmark shall request in
writing for the purpose of field testing and examining the New IET
Equipment, a production version of which IET shall supply to
Benchmark, without charge, for that purpose), Benchmark shall
advise IET, in writing, whether it wishes to add to (or substitute
for) any Existing IET Equipment (or Replacement Cells) covered by
this Agreement the New IET Equipment therein described. Benchmark's
failure timely to respond to a New Equipment Notice shall be deemed
an election by Benchmark not to accept the addition or substitution
of the New IET Equipment therein described, and IET shall
thereafter be free to market, promote, sell and distribute such New
IET Equipment, either directly or through others, for use in
Oilfield Applications.
2.3 IET may withdraw or
delete IET Equipment from the list of equipment covered by this
Agreement in the event IET elects to discontinue the manufacture
and/or the sale thereof, but not otherwise. IET shall provide
Benchmark with at least 180 days prior written notice of its
intention to withdraw or delete any IET Product from the list of
IET Equipment covered by this Agreement, and shall, during such 180
day period, continue to manufacture (and/or to maintain in
inventory) such IET Product, so as to meet 100% of Benchmark's
forecasted needs therefor during such period.
2.4 The Existing ECA
Equipment, the Spare Parts, the Replacement Cells, and any New ECA
Equipment added to this Agreement are hereinafter sometimes
collectively referred to simply as "the IET Equipment".
ARTICLE 3 - DURATION AND RENEWAL:
3.1 This Agreement shall
commence on July 1, 2007 (the "Effective Date") and shall continue
in effect, subject to termination as hereinafter provided, for a
period of five (5) years (the "Initial Term").
3.2 IET and Benchmark agree
that they will meet during the final year of the Initial Term to
negotiate in good faith the terms of a five (5) year extension of
this Agreement, with the terms of this Agreement, as amended to
reflect any changes(s) resulting from such negotiations, to bind
the parties during such extension.
3.3 If such negotiations
either (i) do not occur, or (ii) result in no amendment to this
Agreement, then this Agreement shall automatically be renewed and
extended for an additional five (5) year period (the "Renewal
Term").
3.4 At the expiration
of the Renewal Term (if any), and annually from year to year
thereafter, this Agreement shall automatically renew for a one (1)
year term, unless at least 90 days prior to the expiration
of the Renewal Term (or any annual extension thereafter) either
party shall have given to the other written notice of its intention
not to renew or extend this Agreement at the expiration of the
Renewal Term (or any annual extension thereafter).
3.5 The Initial Term, Renewal
Term (if any) and all automatic annual extensions of this Agreement
are hereinafter sometimes referred to collectively as the "Term of
this Agreement" or simply the "Term".
ARTICLE 4 - EXCLUSIVITY; REFERRAL OF INQUIRIES:
4.1 Benchmark shall have the
sole and exclusive world-wide right and license (i)
to market and promote the IET Equipment and EcaFlo® Solutions
for use in Oilfield Applications; and (ii) to solicit orders for
and to sell IET Equipment and EcaFlo® Solutions to oilfield
chemical manufacturers and distributors, oil and gas well service
companies, oil and gas production companies, and other potential
Oilfield Application customers throughout the world.
4.2 IET shall not during the
Term of this Agreement appoint or license any other agent,
representative, dealer or distributor to sell, distribute or
otherwise deal in or with any IET Equipment or EcaFlo®
Solutions for use in Oilfield Applications, and shall not knowingly
make sales of IET Equipment or EcaFlo® Solutions to
distributors or others who intend to market and/or resell the IET
Equipment or EcaFlo® Solutions for use in Oilfield
Applications.
4.3 IET shall forward
or refer to Benchmark for processing and/or response all inquiries
regarding IET Equipment and EcaFlo® Solutions received by IET
from potential Oilfield Application customers, including the
Existing IET Oilfield Customers, and shall not knowingly sell,
market or promote IET Equipment or EcaFlo® Solutions directly
to any party intending to use same in Oilfield Applications.
ARTICLE 5 - PRODUCT REQUIREMENTS; FORECASTING; PROCESSING OF
ORDERS:
5.1 Subject to the terms and
provisions of Article 6 below, IET agrees to manufacture for and/or
supply to Benchmark during the Term of this Agreement, and
Benchmark agrees to purchase from IET, 100% of Benchmark's IET
Equipment requirements (including both its own requirements
therefor and the requirements of those to whom it sells and
distributes IET Equipment).
5.2 Benchmark shall quarterly
provide IET with a forecast of its anticipated needs for IET
Equipment during the next succeeding three (3) month period, and
shall use reasonable commercial efforts to submit its orders for
IET Equipment not less than thirty (30) days in advance of its
desired delivery date(s) therefor. IET shall use reasonable
commercial efforts to schedule the production of IET Equipment to
fill Benchmark's order(s) more promptly, if so requested (and
Benchmark and IET shall at all times attempt to coordinate orders
for and the production of IET Equipment so as to accommodate both
IET's production scheduling and Benchmark's delivery requirements),
but IET shall have no obligation to deliver any IET Equipment in
fewer than thirty (30) days from the date of order.
5.3 Benchmark
may place orders for the purchase of IET Equipment by telephone,
facsimile or electronic data interchange (e-mail). Upon its receipt
of Benchmark's order(s) for the purchase of IET Equipment, IET
shall promptly confirm to Benchmark (i) the current availability of
the IET Equipment covered by the order(s) and the shipping date(s)
therefor and (ii) the anticipated manufacture date(s) of any IET
Equipment covered by the order(s), but not currently available, and
the estimated shipping date(s) therefor. Confirmation shall be
provided by facsimile or e-mail, directed to the party who placed
the order. Shipment of IET Equipment to fill any order placed
therefore shall constitute acceptance and confirmation.
5.4 Benchmark's purchase
order number(s) shall be included and referenced on all bills of
lading, packing lists, invoices and other documents and
correspondence exchanged between the parties with respect to IET
Equipment orders submitted by Benchmark.
ARTICLE 6 - BENCHMARK'S SOURCING AND SALES OF COMPETING ECA
EQUIPMENT AND COMPETING PRODUCTS:
6.1 If at any time IET is
unable to supply 100% of Benchmark's forecasted needs for any IET
Equipment, Benchmark shall be free to source and secure, and
thereafter to market, promote, use, sell or distribute, ECA
equipment (and electrolytic cells) manufactured by others which
might compete, directly or indirectly, with the IET Equipment IET
is unable to supply ("Competing ECA Equipment"). If IET's inability
to supply 100% of Benchmark's forecasted needs for any IET
Equipment is occasioned by an event of force majeure (as defined in
Article 18 below), then Benchmark's right to source, use, and sell
Competing ECA Equipment shall continue only for so long as IET is
unable to supply 100% of Benchmark's IET Equipment needs, and
Benchmark shall resume ordering the IET Equipment from IET after
IET notifies Benchmark, in writing, that the conditions of force
majeure have terminated and it is again capable of supplying 100%
of Benchmark's forecasted needs therefore.
6.2 IET understands and
acknowledges that Benchmark is currently selling and distributing
certain products which compete with the EcaFlo® Solutions
("Competing Products") to customers using same in Oilfield
Applications. Benchmark agrees to use reasonable commercial efforts
to persuade its customers to use EcaFlo® Solutions, instead of
the Competing Products, whenever the EcaFlo® Solutions are
appropriate substitutes or replacements for the Competing Products,
but Benchmark shall be and remain free to continue selling
Competing Products to its customers whenever they require or direct
that Benchmark supply same.
ARTICLE 7 - SHIPPING AND DELIVERY SCHEDULES; FORCE MAJEURE:
7.1 Subject to the provisions
of Section 5.1 above, IET shall timely ship (strictly in accordance
with the instructions of Benchmark) all IET Equipment ordered by
Benchmark.
7.2 The provisions of Section
7.1 notwithstanding, IET shall not be liable to Benchmark or to
third parties who have submitted purchase orders for IET Equipment
to Benchmark for any loss or damage occasioned by its failure to
make delivery or for any delay in making delivery when such failure
or delay results from an event of force majeure. In the even of a
delay caused or occasioned by an event of force majeure, the
shipment date(s) shall be postponed for a period of time equal to
the time required to remedy, corrector alleviate such cause or
event. If the event of force majeure shall only partially reduce
IET's ability to produce or deliver IET Equipment, IET shall give
priority to Benchmark's orders for IET Equipment , and
shall prorate its available supply thereof among
Benchmark and lET's other customers in such a fashion that
Benchmark receives at least 75% of IET's available lET Equipment
production.
ARTICLE 8 - SHIPPING OBLIGATIONS; PACKAGING:
8.1 IET shall be responsible
for loading and preparing all IET Equipment for shipment
(including, proper packaging, labeling and palletization as
necessary), and shall, at its sole cost and expense, deliver same
FOB to either (i) the Benchmark warehouse designated on Benchmark's
purchase order, or (ii) the facility of the Benchmark customer to
whom Benchmark has sold same, as indicated on Benchmark's purchase
order.
8.2 IET shall, whenever
possible, use Benchmark Distribution Services, L.P. ("BDS") (a U.S.
DOT licensed common carrier) to deliver IET Equipment to the
destination designated on Benchmark's purchase order, unless IET
promptly notifies Benchmark that the freight rates quoted by BDS
are not competitive. If IET delivers such a notice to Benchmark,
Benchmark shall have two (2) business days within which to secure a
re-quote from BDS. If the re-quote is not competitive, Benchmark
fails timely to secure a re-quote, or BDS is not able to effect
shipment within the required time, IET shall be free to ship the
IET Equipment using a common carrier of its choosing.
ARTICLE 9 - IET EQUIPMENT PRICING AND PRICE ADJUSTMENTS:
9.1 During the twelve (12)
month period commencing with the Effective Date (the "Initial
Pricing Period"), IET shall sell IET Equipment to Benchmark at
those prices more particularly specified on Addendum A (as
to Existing IET Equipment), Addendum B (as to Replacement
Cells) and Addendum C (as to Spare Parts) attached hereto.
IET warrants that the lET Equipment prices and Replacement Cell
prices reflected on Addendum A, Addendum B, and
Addendum C are no higher than the prices at which IET is
currently selling those same items to others.
9.2 IET shall have and hereby
reserves the right to increase or decrease the prices at which IET
Equipment will be sold to Benchmark after the Initial Pricing
Period, but may not increase any IET Equipment price(s) more
frequently than quarterly thereafter. Benchmark shall be given at
least 60 days' prior written notice of IET's desire to increase or
decrease prices, and no increase in price(s) shall be effective as
to any IET Equipment ordered prior to the effective date of the
price increase, Notwithstanding the foregoing, IET agrees that it
will not fix, grant, establish or extend to or for any distributor
or other party purchasing IET Equipment for resale any price(s),
discount(s) or payment terms with respect to any IET Equipment
which are more favorable than the price(s), discount(s) or payment
terms made available to Benchmark with respect thereto.
9.3 In no event shall either
IET or Benchmark disclose to any third party the pricing made
available to Benchmark by IET with respect to the IET Equipment
covered by this Agreement.
9.4 Benchmark shall be free
to fix and establish such prices for the resale of IET Equipment as
it, in its sole discretion, deems appropriate.
ARTICLE 10 - INVOICING AND PAYMENT:
10.1 Payment for all
Existing ECA Equipment (and any New ECA equipment added to this
Agreement) which Benchmark does not elect to finance through a
third party leasing company shall be made as follows:
10.1.150% of the purchase price will be deposited with IET at
the time the order is placed;
10.1.240% of the purchase price will be paid upon arrival of the
equipment at the shipping point designated on the purchase order;
and
10.1.3the balance of the purchase price shall be paid within
thirty (30) days of the date of arrival of the equipment at the
shipping point designated on th
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