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EXHIBIT 10.2
REPRESENTATIVE AGREEMENT
This Agreement ("Agreement") is dated effective January 1, 1998
between Turbeco, Inc., a Texas corporation with its principal place of business
at 7030 Empire Central Drive, Houston, Texas 77040 (hereafter referred to as
"Turbeco"), and W. R. Inc., a Texas corporation with its principal place of
business at 12615 Pebble Springs, Houston 77066 , (hereafter referred to as
"Representative").
RECITALS
Turbeco is a supplier and distributor of oilfield service equipment
which provides centralization equipment for the oil and gas industry.
Turbeco and Representative desire that Representative act as a
non-exclusive independent representative for the promotion and sale of
Turbeco's product lines under the terms and conditions of this Agreement.
In consideration of the promises and representations hereinafter made
by the parties hereto, it is agreed as follows:
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ARTICLE I
TERM OF CONTRACT
1.1 TERM OF CONTRACT: This Agreement will become effective on January 1,
1998 and will continue in effect for a period of twelve (12) months unless
sooner terminated.
1.2 AUTOMATIC RENEWAL: This Agreement shall be renewed automatically for
succeeding terms of twelve (12) months each unless either party gives notice to
the other at least sixty (60) days prior to the expiration of any term of its
intention not to renew.
1.3 "CONTRACT TERM" DEFINED: As used herein, the phrase "contract term"
refers to the entire period during which Representative renders services to
Turbeco hereunder, whether for the period provided above, or whether terminated
earlier as hereinafter provided or extended by mutual agreement between Turbeco
and Representative.
ARTICLE II
APPOINTMENT AND TERRITORY
2.1 APPOINTMENT AND TERRITORY: Turbeco hereby appoints and grants
Representative the nonexclusive and non- assignable right to sell the products
of Turbeco anywhere in the world. A list of the products of Turbeco (the
"Products") is set forth and described in Exhibit A attached hereto, and may be
modified from time to time by Turbeco upon thirty (30) days written notice to
Representative.
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2.2 INDEPENDENT CONTRACTORS: The relationship of Turbeco and
Representative will be that of independent contractors, and nothing contained
in this Agreement will constitute the parties as partners, joint ventures,
employer and employee, or otherwise as agents or participants in a joint
undertaking. In all matters relating to this Agreement, neither Representative
nor its employees or agents are or will act as employees of Turbeco within the
meaning or application of any federal or state unemployment insurance laws, old
age benefit laws, social security laws, workers' compensation or industrial
accident laws, or under any other laws or regulations which may impute any
obligations or liability to Turbeco by reason of an employment relationship.
2.3 REPRESENTATIVE'S FINANCIAL OBLIGATIONS: Representative will not
create or assume any financial obligations on behalf of Turbeco, and all
financial obligations associated with Representative's business will be the
sole responsibility of the Representative. Representative will be solely
responsible for damages or lawsuits (including reasonable attorneys' fees)
arising out of the acts or omissions of Representative, its employees and
agents.
ARTICLE III
RESPONSIBILITIES OF REPRESENTATIVE
3.1 PROMOTE SALES: The Representative shall make his best efforts to
diligently promote the sale and general acceptance of the Products, to provide
coverage for existing accounts, and to pursue new or potential accounts on a
regular basis consistent with good business practice, and bear all expenses
incurred by it with respect thereto.
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3.2 COOPERATE IN ADVERTISING: Representative will cooperate with and
assist Turbeco in advertising and merchandising campaigns.
3.3 MAINTAIN OFFICE: Representative will maintain an office which will
be open during normal business hours, and may employ such personnel, if any, at
such compensation and on such other conditions as Representative deems
appropriate to sell and promote the Products.
3.4 SELL COMPETING PRODUCTS: Representative will refuse any agency or
representative position to sell, and will prohibit any of its employees from
selling, any product or products of another manufacturer, dealer, or
distributor which will directly or indirectly compete or conflict with the
Products, without obtaining prior written consent from Turbeco.
3.5 CUSTOMER-RELATED RESPONSIBILITIES: Representative will assist Turbeco
in locating prospective customers of the Products and provide all pertinent
information concerning the Products to prospective customers; promptly transmit
to Turbeco all customer inquiries, complaints and other important information
Representative obtains from or with respect to such customers; assist customers
in placing orders for the Products, promptly transmit such orders to Turbeco,
and assist in expediting deliveries of the Products to customers of the
Products.
3.6 MEETINGS AND TRADE SHOW ATTENDANCE: Representative will attend, and
promote the Products in, such trade shows, conventions and exhibits as Turbeco
reasonably requests, and attend any sales meetings held by Turbeco to which
Turbeco invites Representative with reasonable notice.
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3.7 GENERAL COVENANTS: Representative will conduct business in a manner
that reflects favorably at all times on the Products and on the good name,
goodwill and reputation of Turbeco; avoid deceptive, misleading or unethical
practices that are or might be detrimental to Turbeco, the Products or the
public; make no false or misleading representations with regard to Turbeco or
the Products; not publish or employ, or cooperate in the publication or
employment of, any misleading or deceptive advertising material with regard to
Turbeco or the Products; make no representations, warranties or guarantees to
customers or to the trade with respect to the specifications, features or
capabilities of the Products that are inconsistent with the literature
distributed by Turbeco; and not enter into any contract or engage in any
practice detrimental to the interests of Turbeco.
3.8 MARKET CONDITIONS: Representative will advise Turbeco promptly
concerning any market information that comes to Representative's attention
respecting Turbeco, the Products, Turbeco's market position or the continued
competitiveness of the Products in the marketplace, and confer with Turbeco
from time to time at the request of Turbeco, on matters relating to market
conditions, sales forecasting and product planning relating to the Products.
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ARTICLE IV
RESPONSIBILITIES OF TURBECO
4.1 SALES INFORMATION: Turbeco will provide Representative with Turbeco's
standard sales and technical information and literature regarding the Products.
4.2 PRODUCT ASSISTANCE: Turbeco will provide reasonable sales and service
assistance with respect to the Products.
4.3 TERMS AND CONDITIONS: Turbeco will establish and revise, from time to
time, Product pricing, terms, conditions of sale, and sales programs, including
such credit arrangements as may be deemed appropriate by Turbeco, and promptly
furnish Representative with copies of all such terms and conditions, price
lists, and Product price schedules, as then in effect.
4.4 PROMOTIONAL MATERIAL: Turbeco will furnish Representative, at no
charge, with reasonable amounts of Turbeco's standard promotional sales and
technical information, literature and brochures and, to the extent reasonably
practicable, provide such information in advance of initial introduction or
sales of new or redesigned products.
ARTICLE V
REPRESENTATIVE COMPENSATION
5.1 FLAT RATE: Representative's sole compensation under this Agreement
shall be a monthly payment of Twelve Thousand Five Hundred Dollars
($12,500.00), payable by the end of each month of the term.
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ARTICLE VI
ORDERS, PRICES AND TERMS
6.1 TURBECO CONTROL OF TERMS, CONDITIONS AND ORDERS: Turbeco will
establish and have exclusive control over all prices, discounts,
specifications, terms and conditions concerning sales of the Products, all of
which may be changed from time to time by Turbeco, with or without notice. All
sales will be F.O.B. Turbeco's warehouse in Houston, Texas.
6.2 CREDIT RISKS AND COLLECTIONS: Turbeco will be responsible for all
credit risks and collections; however, Representative will provide reasonable
assistance to Turbeco in the collection of sums owed by customers whose orders
were solicited by Representative.
6.3 SHIPMENT AND PAYMENT: All Products for which orders under this
Agreement are accepted by Turbeco will be shipped and billed by Turbeco
directly to the customer. All invoice payments are to be made directly to
Turbeco by the customer. If any payments are received by Representative in
error, Representative will immediately forward such payments to Turbeco in
full.
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ARTICLE VII
PROPRIETARY INFORMATION
7.1 REPRESENTATIVE'S CONFIDENTIALITY OBLIGATION: Representative
acknowledges that in the course of performing its obligations under this
Agreement, it may obtain information relating to Turbeco and the Products which
is confidential to Turbeco (the "Proprietary Information"). The Proprietary
Information includes without limitation trade secrets, know-how, inventions,
techniques, processes, programs, diagrams, schematics, customer and financial
information and sales and marketing plans. Representative will (a) use the
Proprietary Information only in connection with fulfilling its obligations
under this Agreement, (b) during the term of this Agreement and for a period of
two (2) years thereafter, hold the Proprietary Information in strict confidence
and exercise due care with respect to its handling and protection of the
Proprietary Information, at a minimum complying with its own policies
concerning protection of its own proprietary and/or trade secret information
and (c) disclose, divulge or publish the same only to such of its employees or
representatives who (i) have a need to know or have access to Turbeco's
Proprietary Information in order for such employees or representatives to carry
out the purposes of this Agreement, and (ii) have executed nondisclosure
agreements binding them not to use or disclose the Proprietary Information
except as permitted herein and to no other person or entity, whether for its
own benefit or for the benefit of any other person or entity. Representative
further agrees to return all copies of all Proprietary Information in its
possession, control or custody immediately upon termination or expiration of
this Agreement.
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7.2 USE TURBECO TRADEMARKS AND TRADE NAMES: During the term of this
Agreement, Representative is authorized by Turbeco to use the trademarks, trade
names, logos and designations used by Turbeco for the Products in connection
with Representative's advertisement and promotion of the Products.
Representative's use of such trademarks, trade names, logos and designations
will be in accordance with Turbeco's policies in effect from time to time,
including but not limited to trademark usage and cooperative advertising
policies.
7.3 REPRESENTATIVE DOES NOT ACQUIRE RIGHTS: Representative has paid no
consideration for the use of Turbeco's trademarks, trade names, logos,
designations or copyrights, and nothing contained in this Agreement will give
Representative any right, title or interest in any of them. Representative
acknowledges that Turbeco, either as an actual owner or licensee, owns and
retains all trade names, trademarks, logos, designations, copyrights and other
proprietary rights in or associated with all the Products, and agrees that it
will not at any time during or after this Agreement assert or claim any
interest in or do anything that may adversely affect the validity or
enforceability of any trademark, trade name, logo, designation or copyright and
other proprietary rights belonging to or licensed to Turbeco.
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7.4 OBLIGATION TO PROTECT: Representative agrees to use reasonable
efforts to protect Turbeco's proprietary rights and to cooperate in Turbeco's
efforts to protect its proprietary rights. Representative agrees to notify
Turbeco of any known or suspected breach of Turbeco's proprietary rights that
comes to Representative's attention. Representative acknowledges that only
Turbeco has the right to sue for infringement of Turbeco's proprietary rights.
ARTICLE VIII
INDEMNIFICATION
8.1 NO INDEMNIFICATION OF REPRESENTATIVE: Turbeco will not be liable for
any losses, injuries, damages or claims of any nature whatsoever which
Representative may be subject to or incur as a result of any of its activities
in connection with this Agreement.
8.2 INDEMNIFICATION BY REPRESENTATIVE: Representative will indemnify
Turbeco and hold it harmless from any claims, losses or damages, including
court costs and fees of attorneys and other professionals, for personal injury,
tangible or intangible property damage or any other liability, arising from (i)
the negligence or fault of Representative, its employees or agents, (ii) any
use by Representative, its employees or agents of any trademarks, trade names,
logos, designations, copyrights, patents or other proprietary rights relating
to the Products, or (iii) any warranty made by Representative, its employees or
agents relating to the Products.
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ARTICLE IX
TERMINATION
9.1 TERMINATION: This Agreement may be terminated at any time by either
party hereto upon sixty (60) days written notice to the other party with or
without cause.
9.2 COMPENSATION UPON TERMINATION: The Representative shall be entitled
to receive its full flat rate monthly compensation prorated to the date of
final termination of this agreement. Such pro-ration shall be based on a
thirty (30) day month.
9.3 DUTIES AND RESPONSIBILITIES UPON TERMINATION. Upon termination or
expiration of this Agreement: (i) Representative will cease to use any Turbeco
trademark, trade name, logo or designation; and (ii) Representative will return
all materials provided by Turbeco pursuant this Agreement and all materials
containing any Proprietary Information.
9.4 DISCLAIMER OF FURTHER LIABILITY: In the event of termination by
either party in accordance with any of the provisions of this Agreement,
neither party will be liable to the other because of such termination for
compensation, reimbursement or damages on account of the loss of prospective
profits or anticipated sales or on account of expenditures, investments, leases
or commitments in connection with the business or good will of Turbeco or
Representative. Turbeco's sole liability under the terms of this Agreement
will be for any unpaid compensation as specified in paragraph 9.2 above.
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ARTICLE X
GENERAL PROVISIONS
10.1 ASSIGNMENT: This Agreement is not assignable by Representative and
Representative may not delegate its duties hereunder without the prior written
consent of Turbeco. Any attempted assignment in violation of this provision
will be void and the provisions hereof will be binding upon and inure to the
benefit of the parties, their successors and permitted assigns.
10.2 NOTICES: All notices and demands hereunder will be in writing and
will be served by personal service, facsimile transmission or mail at the
address of the receiving party set forth in this Agreement (or at such
different address as may be designated by such party by written notice to the
other party). All notices or demands by mail will be by certified or
registered mail, return receipt requested, and will be deemed complete five (5)
days after mailing.
10.3 SECTION HEADINGS AND LANGUAGE INTERPRETATION: The section headings
contained herein are for reference only and will not be considered substantive
parts of this Agreement. The use of the singular or plural form will include
the other form, and the use of masculine, feminine or neuter genders will
include the other genders.
10.4 GOVERNING LAW AND CHOICE OF FORUM: The laws of the State of Texas
will govern all disputes arising out of or relating to this Agreement.
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10.5 CLAIMS AGAINST TURBECO: Representative will notify Turbeco in writing
of all claims arising from or in any way relating to this Agreement within
three (3) months of the existence of such claims. If Representative fails to
provide such written notice, such claims will be barred. This provision will
survive any termination or expiration of this Agreement.
10.6 FORCE MAJEURE: Neither Turbeco nor Representative will be responsible
for any failure to perform due to unforeseen circumstances or to causes beyond
Turbeco's or Representative's control, including but not limited to acts of
nature, war, riot, embargoes, acts of civil or military authorities, fire,
floods, accidents, strikes, or shortages of transportation, facilities, fuel,
energy, labor or materials.
10.7 EQUITABLE RELIEF: Representative acknowledges that any breach of its
obligations under this Agreement with respect to the proprietary rights or
confidential information of Turbeco will cause Turbeco irreparable injury for
which there are inadequate remedies at law, and therefore Turbeco will be
entitled to receive in any court of competent jurisdiction injunctive,
preliminary or other equitable relief in addition to damages, including court
costs and fees of attorneys and other professionals, to remedy any actual or
threatened violations of its rights with respect to such matters.
10.8 WAIVER: The waiver by Turbeco of any default by Representative will
not waive subsequent defaults by Representative of the same or a different
kind. By acceptance of this Agreement, Representative waives and releases any
and all claims against Turbeco arising under prior agreements, whether oral or
in writing.
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10.9 ATTORNEYS' FEES: In the event any litigation is brought by either
party in connection with this Agreement, the substantially prevailing party in
such litigation will be entitled to recover from the other party all the costs,
attorneys' fees and other expenses incurred by such party in the litigation,
and need not bring a suit to final judgment to substantially prevail.
10.10 SEVERABILITY: In the event any of the provisions of this agreement is
held by a court or other tribunal of competent jurisdiction to be
unenforceable, the other provisions of this Agreement will remain in full force
and effect.
10.11 ENTIRE AGREEMENT: This Agreement, together with its exhibits,
constitutes the entire agreement between the parties pertaining to the subject
matter hereof, and supersedes in their entirety any and all written or oral
agreements previously existing between the parties with respect to such subject
matter. Representative acknowledges that it is not entering into this
Agreement on the basis of any representations not expressly contained herein.
Any modifications of this Agreement must be in writing and signed by both
parties hereto, except as provided in Section 2.1 of this Agreement.
10.12 EFFECTIVENESS: This Agreement will become effective only after it has
been signed by Representative, and it has been accepted by Turbeco at its
principal place of business.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the effective date set forth above.
TURBECO REPRESENTATIVE
By: /s/ WILLIAM G. JAYROE By: /s/ WALLACE ROBERTSON
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William G. Jayroe Wallace Robertson
President and CEO President
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EXHIBIT A
TURBECO PRODUCTS
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