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.
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3.
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DUTIES OF
THE PURCHASER .
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(a)
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The Purchaser
shall use his best efforts to place the Products in operational
use.
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(b)
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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.
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(.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.
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(.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.
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(.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.
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(.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.
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(c)
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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.
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(d)
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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.
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(e)
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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.
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(f)
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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.
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(g)
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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.
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(h)
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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.
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(i)
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The Purchaser
shall bear its own costs and expenses incurred in performing its
obligations hereunder.
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(j)
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All press
related to HydroFlo Inc or its portfolio companies shall be
reviewed and approved by HydroFlo Inc prior to being
released.
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(k)
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Special orders
of smaller units less than 100 GPM are available upon request but
will not effect miminum order size.
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(l)
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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.
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DUTIES OF
THE COMPANY.
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(a)
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The Company
shall design systems appropriately to meet the needs for station
based on conditions provided by the purchaser.
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(b)
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The Company
shall be involved in the start-up of the system and training of the
operations personnel.
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(c)
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The Company
will make available names and telephone numbers of all PLUS system
owners.
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(d)
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The Company
will make available any and all “white” papers
customarily written about the PLUS system.
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4.
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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.
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5.
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TERMS OF
SALE AND PAYMENT .
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(a)
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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.
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(b)
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All equipment
produced by the company is sold f.o.b. the company’s office
in Apex, NC.
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(c)
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The Customer
shall pay for the Products in U.S. Currency by wire transfer or
other payment according to the following payment plan:
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(i) Thirty
three percent (33%) due upon order.
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(ii) Thirty
three percent (33%) due upon design completion and component
order.
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(iii) Remaining
Balance will be due prior to shipment.
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(.2) Freight
charges shall be billed COD to the purchaser.
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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
