Document a16VxzQ93EmMEQbQo6jMwOx4N

INTERNAL CORRESPONDENCE METALS DIVISION To (Name) Division Location Floor Number Copy to Mr. Philip J. Fournier Records Center Morrisville, Vermont Loc. 210 Mr. R. F. X. Fusaro 270 PARK AVENUE, NEWYORK, NEW YORK 10017 Dote Originating Dept, September 9, 1976 Floor Number Answering letter dote Sufc/ecf DISTRIBUTOR AGREEMENTS - UCC "Calidria" Asbestos Dear Mr. Fournier: Enclosed please find a fully executed copy of the following documents: 1. Distributor Agreement between UCC and Apperson Chemicals dated March 1, 1976. 2. Distributor Agreement between UCC and ACTIVEX Corporation dated April 1, 1976. Please acknowledge receipt of the above by signing the enclosed duplicate of this letter and returning same to me. Very truly yours, jl Atts. W C. THURBE UCC 004505 UNION CARBIDE CORPORATION DISTRIBUTOR AGREEMENT i AGREEMENT dated as of 'yjipU'te(iay of April 1975 between UNION CARBIDE CORPORATION (hereinafter/ca Free ^HJn ion Carbide"), a corporation organized and existing under the laws of the State of New York, having an office at 270 Park Avenue, New York, New York, and ACTYVEX Corporation (hereinafter called "Distributor") a corporation organized and existing under the laws of the State of Massachusetts having an office at 31 Exchange Street, Suite 25, Lynn, Massachusetts 01902. W J_ I N E ^ S E I H: 1. DISTRIBUTORSHIP. Union Carbide hereby appoints Distributor as a non-exc lus'i ve distributor for the resale of "Calidrfa" Asbestos products listed in Exhibit A attached hereto and made a part hereof (hereinafter called "Product"). Union Carbide shall have the right at any time to make addi+ioos, deletions or modification in the Products set forth in Exhibit A by giving . Distributor 30 days written notice of each such revision. 2. QUANTITY. Union Carbide agrees to sell 'and Distributor agrees to buy for resale, upon the terms and conditions herein set forth. Products in such quantities as Distributor shall need in its business as a distributor of Products. Distributor shall exercise its best, efforts to .reset I as large a . . quantity of the Products as possible. 3. PRICES. . . " (a) The purchase price for Products sold and delivered to Distributer hereunder shall be Union Carbide's standard list price in effect at the time of shipment, less the resale discount specificed in Exhibit A. In addition to the foregoing. Distributor shall pay to Union Carbide as part of the purchase price the amount of ail taxes, excises or other governmental charges that Union Carbide may be required to pay on the sale or transportation of any Product sold and delivered hereunder, except where the law otherwise provides. (b) The aforementioned discount shall not app-|^rag^ggfgduct ordered by Distributor for use xaooneettdjecby Distributor/to a corporation owned or controlled, directly or indirectly, by or affiliated with Distributor.xxncxxjoauivj^. 4. DELIVERY AND PAYMENT. - (a) Ail Products purchased by Distributor hereunder shall be delivered to Distribufor and title shall pass f.o.b. Union Carbide's shipping location. All transportation charges shall be paid by Distributor. (b) Purchase orders specifying quantity, type of Product, date of delivery and shipping instructions shall be furnished by Distributor a reasonable time prior to each deliver/ requested hereunder. Purchase orders shall be addressed as follows: Union Carbide Corporation, Mining and Metals Division, PO Box K, King City, California 93930. (c) Terms of payment shall be net cash 30 days.from invoice date. (d) Union Carbide reserves the right at all times, either generally or with respect to any specific order by Distributor, to van/, chongeor limit the amount or duration of credit to be allowed to Distributor. V/ithout limifing the generality of the foregoing, all deliveries hereunder are subjoct to the -t- UCC 004506 condition that all Indebtedness of Distributor to Union Carbide due before the date of. shipment shall first be paid. (e) In the ge5jrDsj|^utor is purchasing any Product for use xxx ?*!?** bvtKif!r ibutor/as provided j[njAr`*''f!f- 3 (b) above. Distributor shail indicate/on its purchase order/tniequi?it'fT9nand type of Product involved. 5. ACCEPTANCE OF ORDERS. All purchase orders hereunder are subject to acceptance by Union Caroide at its King City, California office. The right to reject any order is reserved by Union Carbide, even if a previous quotation has been made. An order is accepted by Union Carbide when shipped or when it is acknowledged.in writing. 6. TRADEMARKS. Distributor shall not Incorporate under or otherwise make use of the name of Union Carbide or of any of its divisions or subsidiaries, or make use of any trademarks or trade name of Union Carbide, or of any trademark or trade name which in the judgment of Union Carbide is confusingly similar thereto,, or make use of any sale promotion or publicity literature, displays or stationery of Union Carbide, without the prior written consent of Union Carbide. Distributor shall not alter or remove any trademark or trade name applied by Union Carbide to the Products at its manufacturing facilities. Distributor's covenant under this Article 6 shall survive termination of this Agreement. 7. LITERATURE. Union Carbide will supply, on a no charge basis, reasonable quantities of general price fists which will list all Products genera Ily avaiiable for sale by Distributor. Reasonable quantities of specifications and applications Information on the Products will be furnished by Union Carbide for the use of - Distributor sales personnel. Inquiries concerning Product availability, delivery or technical information should be directed to the nearest "Calidria" Asbestos .l- office of the Metals Division of Union Carbide. l'_ {0^ 8. WARRANTY. (a) Union Carbide warrants that at the time of shipment each Product delivered hereunder will meet Union Carbide's applicable standard specifications for such Product in effect at the time of shipment or such other specifications as have been expressly agreed upon with Distributor in writing. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO ANY PRODUCT DELIVERED HEREUNDER WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING WARRANTY-OF MERCHANTABILITY IN OTHER RESPECTS THAN EXPRESSLY SET FORTH AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.OR ANY OTHER WARRANTY IMPLIED OR OTHERWISE CREATED UNDER THE UNIFORM COMMERCIAL CODE. r -2UCC 004507 1 (b) Distributor's receipt of any Product delivered hereunder shall be an unqualified acceptance of, and a waiver by Distributor of any and all claims with respect to, such Product unless Distributor gives Union Carbidq * written notice of claim within thirty (30) days after such receipt'. No claim against Union Carbide of any kind, whether as to Product deii^ei$r?ntvor no,;'_ - 1 delivery of Product, and whether or not based on negligence/ shall Be gteater y**/ in amount than the purchase price of the Product in respect of which such claim . ^ is made. Without limiting the generality of the foregoing. Union Carbide shall " not be liable for any special, indirect or consequential damges whether or not caused by or resulting from the negligence of the seller or breach of the warranties by the seifer hereunder. (c) (see below) 9, PARTY RELATIONSHIP. This Agreement does not create any employer- employee, agency, joint venture or partnership relationship between Union Carbide and Distributor. Distributor is not authorized or empowered to act as agent for Union Carbide for any purpose and shall not on behalf of Union Carbide either enter into any contract, undertaking or agreement of any kind whatever or make any promise, warranty of representation with respect to the Products other than , such as may be published by Union Carbide in its advertising and sales promotion material. The status of the Distributor shall be that of an independent contractor only. ' 10. FORCE MAJEURE. Neither party shall be liable for its failure to perform herunder (other than its failure to pay money) caused by circumstances beyond Its control. Including but not limited to acts of God, fire, floods, wars, sabotage, accidents, labor disputes or shortages, government actions (including but not limited to priorities, requisitions, allocations and price adjustment restrictions), inability to obtain material, equipment or transportation and any other similar or different contingency. The party whose performance is prevented by any such contingency shall have the right to suspend or reduce deliveries of Product during the period of the continuance of such causes or events and the total quantity of Products deliverable under this Agreement shall be reduced by the quantity of the deliveries so omitted. In the event of inability to supply ' the total demands for Products covered by this Agreement, Union Carbide may allocate its available supply among any or all purchasers as well as departments, divisions and subsidiaries of Union Carbide. Any such suspension, reduction or allocation In the quantity deliverable hereunder shall not be greater than the percentage reduction to other customers or departments, divisions and subsidiaries of Union Carbide taken in the aggregate. In no event shall Union Carbide be obligated to pfcuerrcehYa?sdeer Product from others in order 'DURATION AND TERMINATION. to enable it to deliver Product to Distributor 'Y. /*<i ~ (a) The term of this Agreement shall commence on the date hereof and shall continue in full force and effect until terminated, with or without cause, by either party giving to the other written notice of termination at least thirty (30) days prior to the effective date of such termination, unless earlier terminated as herein provided. The rights and obligations of the parties under shall survive any termination of this Agreement with respect to all ortfers accepted/ above and Products delivered hereunder prior to the effective date of such termination. 8. (c) Distributor represents that it has full knowledge of the hazards involved in handling and using Product and that Distributor has advised its employees, independent contractors, and others, including purchasers of Product from Distributor, of said hazards. Distributor further represents that it is in compliance with, and will comply with all federal, state and local laws, regulations or orders governing use and handling of the Product* Distributor assumes, and agrees to hold Union Carbide harmless from,all liability resulting from the use of Product by Distributor, its employees and Independent contractors. ^ -3- UCC 004508 (b) Union Carbide m3y terminate this Agreement at any time upon written notice to Distributor if (i) Distributor files a petition in bankruptcy, (ii) Distributor makes a general assignment for the benefit of creditors, (iii) a receiver for Distributor is appointed, < i v) Distributor becomes insolvent, (v) any person who at the time of execution of this Agreement was participating substantially in the operation or ownership of Distributor dies, is incapacitated, removed, eliminated, resigns or withdraws for any reason from Distributor, or (vi) Distributor shall be guilty of a breach of any of the provisions of this Agreement and such breach has continued for ten CIO) days after written notice of said breach from Union Carbide. Any termination of this Agreement pursuant to this paragraph (b) shall be in addition to and shall not be exclusive of or prejudicial to any other rights or remedies at law or in equity which Union Carbide may have against Distributpr. 12. ASSIGNMENT. Any assignment or modification of this Agreement by either party without the prior written consent of.the other party shall be void.- 13. EXECUTION AND INTERPRETATION. . (a) The provisions of this Agreement shall be construed, and the performance thereof governed, in accordance with the laws of the State of New York. - (b) No change in, addition to, or waiver of the terms or conditions hereof shall be binding upon either party unless approved in writing by an authorized representative, and no modification shall be effected by the acknow ledgment or acceptance of release or purchase order forms containing other or different terms or conditions. Cc) It shall be a sufficient giving of any notice or other communica tion hereunder if the p3rty giving the same shall deposit a copy thereof in the . Post Office in a registered or certified envelope, postage prepaid, properly ' addressed to the other party at the address hereinabove set forth or at such other address as the other party shall have heretofore in writing designated. The date of giving any such notice or other communication shall be the date on which such envelope was deposited as above provided. The Post Office receipt shaving the date of such deposit shall be prima facie evidence of these facts. . (d) This Agreement supersedes as of the date hereof any existing agreement between the parties relating to the purchase and sale of or solicitation of orders for Products. * IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. DISTR-;IiBBUUTTOOR By /'V. JL~c UNION CARBIDE CORPORATION Title f --------------- ! ACTYVEX corporaTM* 1 1 156 BROAD STREET SUITE C-f j IVKB, MASS. 01901 v,. *17 501.722$ Ti11e Vice President - Metals Division -4- UCC 004509 ACTYVEX Corporation April I, 1975 EXHIBIT A lalidria" Asbestos Product SG-210 High Purity Pellets CHPP) High Purity Open (HPO) T-I35-P T-135-0 RG-IIO RG-144 ' ' RG-244 RG-600 Resa1e DIscou nt 5? 10? 10? ' . 5? 5? 10? 10? 10? 10? UCC 004510