EXHIBIT 10.4
SUPPLY AGREEMENT
AGREEMENT, made this 5th day of January, 1996, between SAMAX
SELLER ENTERPRISES, INC., a New York Corporation trading as Pyrock,
having an office at 62 Woolsey Street, Irvington, New Jersey 07111
(hereinafter called "Seller"),
BUYER and SAFE ALTERNATIVES CORPORATION OF AMERICA, INC.,
with a place of business at 27 Governor Street, Ridgefield,
Connecticut 06877 (hereinafter called "Buyer"):
1. Seller agrees to sell to Buyer in any minimum quantities but
will not ship product to Seller's Customers in less than
quantities of 150 gallons per shipment, and Buyer agrees to
purchase from Seller, upon the terms and conditions hereinafter
stated, the following material or materials:
. 566 Gel . Bio-Degradable Paint Brush Cleaner
. 576 Paste . Graffiti Remover
In addition to the above, Seller agrees to make available to Buyer
all products currently being manufactured by Seller and any
products that are manufactured by Seller in the future.
DURATION 2. Delivery shall commence on January 6, 1996 and shall
continue until terminated pursuant to Paragraph 10 hereof.
QUALITY 3. Seller shall maintain quality standards in accordance with
its current standards.
TIME OF 4. Seller shall be ready to ship to Buyer within two weeks of
DELIVERY order of the aforesaid product under normal conditions.
PRICE 5. The price of the product shall be FOB Seller's plant as
follows:
The current price for 566 Gel is $16.90 per gallon in five gallon
containers.
The current price for 576 Paste is $18.50 per gallon in five
gallon containers.
These prices are subject to adjustment as provided in Paragraph 7
of this agreement.
The price of products shall include raw product, container,
liability insurance coverage, palletizing of product and service
of shipping contractors. Labels shall be supplied by the Buyer in
compliance with all specifications necessary under the law.
Buyer and seller will agree to an acceptable price for the
additional products currently being manufactured by Seller, as
well as any new products Seller manufactures in the future.
BUYER'S 6. Buyer shall maintain its own product liability insurance
INSURANCE with a per claim maximum of at least $1,000,000.00.
PRICE 7. Seller may adjust any price hereunder in the event the cost
of the raw materials necessary to produce the product increases by
the amount of the increase of the raw materials. In the event the
price is increased in accordance herewith and Buyer no longer
wishes to purchase, the Buyer may terminate this agreement in
accordance with Paragraph 11 thereof.
In the event the cost of raw materials for the products discussed
herein decreases, Seller agrees to decrease the price of said
products to Buyer on a dollar for dollar basis accordingly. The
same will hold true for any other products that Buyer agrees to
purchase.
PAYMENT 8. Payment shall be on demand without discount unless otherwise
mutually agreed.
EXCLUSI- 9. It is agreed between the parties that as long as this
VITY agreement is in effect, Seller will not private label any
products being marketed and purchased by Buyer for any other
entity. Additionally, Seller agrees that during the period of
exclusivity of this agreement, Seller shall not sell to direct
competitors of Buyer (e.g., Peel Away and Tom's Back to Nature).
This provision shall not apply to Seller's sales to distributors
and paint stores. It is specifically understood that if the Seller
sells its product to a distributor and that distributor
subsequently sells to a competitor of the Buyer, it shall not be
considered a breach of this agreement by the Seller. It is agreed
that Seller and Buyer shall meet and agreed to a minimum quantity
of product which will be purchased by Buyer on or before April 15,
1996. This paragraph shall remain in effect for as long as the
aforesaid minimums are met by the Buyer. In the event Buyer and
Seller cannot agree upon minimums, this agreement shall continue,
but this paragraph shall be of no further effect whatsoever. This
paragraph shall not become effective until aforesaid minimum has
been established and met by the Buyer.
FIRST 10. Both parties agree that in addition to the current product
REFUSAL line of the Seller, Buyer shall have the right of first refusal
to private label any future products that Seller shall add to his
line in accordance with the terms thereof with the price for said
products to be agreed upon at said time. Buyer must advise Seller
in writing of its intention to avoid itself of its right of first
refusal within five weeks of receipt of written notice from Seller
of its intention to produce said new line. It is agreed between
the parties that should Buyer add any synergistic products to its
line, i.e., products which require blending such as degreasers and
the like, Seller shall be notified of Buyer's intention to sell
said product. Seller shall be given a 90 day right of first
refusal to manufacture said product at equal quantities in writing
by another manufacturer to Buyer for the same quantities. The
quality of the blending of the product shall be the same or better
than quoted by any other potential manufacturer.
TERMI- 11. Buyer and Seller agree that this agreement may only be
NATION terminated for the following situations:
a. by mutual written agreement;
b. As to Buyer: Should this product fail to perform as specified
in Seller's literature, should the price be increased in
accordance with Paragraph 5 hereof such that Buyer no longer
wishes to purchase the product; or failure of Seller to otherwise
comply with the terms of this agreement;
c. As to Seller: Failure of Buyer to meet the financial
obligations set forth herein or failure to otherwise comply with
the terms of this agreement.
In the event of a default, the aggrieved party shall provide
written notice of said default, calling for a 30 day period in
which to cure said default.
The parties agree that during the period of exclusivity of the
agreement, should the Buyer terminate this agreement without
cause, the Buyer shall be barred from using the name "Ameri
Strip".
INTER- 12. Seller hereby grants Buyer the rights to market and sell
NATIONAL internationally without limitation any and all products currently
being manufactured by Seller or any products in the future that
are manufactured by Seller.
NON- 13. In the event Seller breaches this agreement, then Seller
COMPETE agrees that it shall not do any business with any customer of
Buyer for three (3) years from the date of the last sale to said
customer by Buyer. The term "customer" is defined as any entity to
whom Buyer has sold product or sent samples to in a period of two
(2) years from the date of said Breach. Buyer shall notify Seller
of all said customers and provide proof of said sales. This
paragraph shall not take effect until Paragraph 9 hereof becomes
effective.
FORCE 14. Neither party shall be liable for its failure to perform
MAJEURE hereunder if said performance is made impracticable due to any
occurrence beyond its reasonable control, including acts of God,
fires, floods, wars, sabotage, accidents, labor disputes or
shortages, governmental laws, ordinances, rules and regulations,
whether valid or invalid (including, but not limited to,
priorities, requisitions, allocations, and price adjustments
restrictions), inability to obtain material, equipment or
transportation, and any other similar or different occurrences.
The party whose performance is made impracticable by any such
occurrences shall have the right to omit during the period of such
occurrence all or any portion of the quantity deliverable during
such period, whereupon the total quantity delivered upon this
Agreement shall be reduced by the quantity so omitted. If, due to
any such occurrence, Seller is unable to supply the total demands
for any material specified in this Agreement, Seller shall have
the right to allocate its available supply among its customers and
its department and divisions in a fair and equitable manner. In no
event shall Seller be obligated to purchase material from others
in order to enable it to deliver material to Buyer hereunder.
MISCEL- 15. The validity, interpretation and performance of this
LANEOUS Agreement with respect to any material delivered or to be
delivered hereunder shall be governed by the laws of the State of
New York. This Agreement contains all of the representations and
agreements between the parties hereto. Seller warrants that
material delivered hereunder meets Seller's specification for the
material or such other specifications as have been expressly made
a part of this Agreement and that such material is adequately
obtained, packaged and labeled and conforms to the promises and
affirmations of fact made on the container and label. This
Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of each of the parties hereto,
but any assignment thereof by either party without the prior
written consent of the other party shall be void. No modification
of this Agreement or waiver of the terms or conditions thereof
shall be binding upon Seller unless approved in writing by an
authorized representative, or shall be effected by the
acknowledgement or acceptance of purchase order forms containing
other different terms or conditions whether or not signed by an
authorized representative of Seller.
IN WITNESS HEREOF, the parties have hereunto set their hands and seals as of the
date and year first above written.
SAMAX ENTERPRISES, INC.,
A/K/A PYROCK CHEMICAL
BY: __________________________
SAMUEL FLEISCHMAN
SAFE ALTERNATIVES CORPORATION
OF AMERICA, INC.
BY:__________________________
KENNETH C. GREENBERG
CHIEF OPERATING OFFICER