----- Tripax Engineering Co. Pty. Ltd.
| RBJ | ---------------------------------------------------------------
----- XXXXXXXXX ENGINEERING AUSTRALIA
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Monday, 8 August 2005
DISTRIBUTOR AGREEMENT
THIS AGREEMENT is made this____________________day of ________________2005 by
and between TRIPAX ENGINEERING CO. hereinafter referred to as the 'Company',
with its principle place of business located at 00 Xxxxx Xxxxxx, Xxxxxxxxx,
0000 Xxxxxxxx, Xxxxxxxxx and Aquentium Inc. hereinafter referred to as the
'Master Distributor' with its principle place of business at 00-000 Xxxxx
Xxxxxx Xxxxxx, Xxxxx Xxxx Xxxxxxx, Xxxxxxxxxx 00000 XXX.
NOW, THEREFORE, in consideration of the promises hereinafter made by the
parties hereto, it is agreed as follows;
ARTICLE 1
APPOINTMENT OF DISTRIBUTORSHIP
1. DISTRIBUTION RIGHT. The Company hereby appoints and grants Distributor
the exclusive and non-assignable right to sell the equipment of the Company
('Equipment') listed in the then current 'Price List' (Exhibit 'A' attached
hereto). The distribution right shall be limited to customers who have places
of business in, and will initially use the Company's products in the
geographic area set forth in Exhibit "B" attached hereto.
2. PRICES. All prices stated are FOB the Company's offices in Xxxxxxxxx,
0000, Xxxxxxxx. Prices do not include transportation / shipping costs which
shall be incurred by Distributor. Prices do not include federal, state or
local taxes applicable to the products sold under this Agreement. An amount
equal to the appropriate taxes will be added to the invoice by the Company
where the Company has the legal obligation to collect such taxes. Distributor
shall pay such amount to the Company unless Distributor provides with a valid
tax exemption certificate authorized by the appropriate taxing authority.
3. TERMS. Terms are 25% down with the order and the remainder due 30 days
after receipt of shipment, unless other provisions are agreed to in writing.
Invoices not paid within 60 days will incur (5 1/2%) per month late charge
assessed against the unpaid balance from the date of invoice until the date of
payment is received by Company.
/s/ PH
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4. TITLE TO EQUIPMENT. The Company hereby reserves a purchase money
security interest in each unit of Equipment sold or to be sold under the
Agreement and the proceeds thereof, if Distributor shall have sold or leased a
unit(s) to another party prior to Distributor paying Company the purchase
price for such unit as set for the herein, in the amount of such unit's
purchase price. These interests will be satisfied by payment in full. A copy
of the Agreement may be filed with the appropriate authorities at any time
after the signature by the Company as a financing statement in order to
perfect the Company's security interest. On the request of the Company,
Distributor shall execute financing statement(s) and other instruments
the Company shall desire to perfect a security interest in the Equipment for
its purchase price. Title to the equipment shall pass to Distributor upon
receipt by the Company of payment in full for all amounts due for such units
of Equipment.
5. COMPETITIVE EQUIPMENT. Distributor agrees not to represent or sell
other products, which are deemed to be competitive with the Company's
Equipment in regards to the food industry for a period of 12 months.
ARTICLE II
MARKETING AND SUPPORT
1. SALES. Distributor shall use its best efforts to promote the sale and
distribution of the Equipment and to provide adequate support, which efforts
shall include the following;
a) Establishing and maintaining appropriate, attractive and accessible
premises and facilities for the display and demonstration of
Equipment.
b) Provide an adequate, trained sales and technical staff to promote
the sale and support of the Equipment.
c) Undertake promotional campaigns and canvas prospective users to
stimulate the sales of Equipment.
d) Provide Company with forecasts every month of its probability
requirements for the next six months for Equipment and accessories,
such forecasts to be in such manner and on forms to be specified by
Company and agreed to by Distributor.
2. ADVERTISING. Company shall, upon request, assist the Distributor on all
advertising, sales promotion and public relations campaigns to be conducted,
including providing Distributor with documentation of previous promotional
campaigns conducted in connection with the Equipment, and shall provide
necessary technical information and assistance.
/s/ PH
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3. TRAINING. Company shall furnish training of Distributor's sales and
technical representatives at various times and locations as shall be
designated for this purpose by Company. Enrolment in training courses shall
be limited to a reasonable number of persons who shall be sufficiently
qualified to take the courses. Distributor shall pay the salaries and all
travel and lodging expenses and subsistence of its representatives.
4. RECRUITMENT OF NEW DISTRIBUTORS. Distributor will also be allowed to
recruit other distributors within agreed upon territory. All pricing of
equipment will be handled through master distributor.
ARTICLE III
DELIVERY
1. PURCHASE ORDERS. Distributor shall order equipment by written notice to
Company. Each order shall specify the number of units to be shipped, the type
of units to be shipped (as identified by Company model number designations
indicated in the Price List) including all optional features, the desired
method of shipment and the installation site. Company shall indicate its
acceptance of such release by returning a signed copy to Distributor. Company
agrees to ship units to Distributor as close as possible to the delivery
schedule set forth in each order as accepted by Company, unless Company
otherwise indicates in writing. Company shall not be required to honour any
release which: (a) specifies a shipping date earlier than Company's then
current delivery schedule for the date such release is received by Company
and/or (b) specifies a quantity to be delivered in any one month within the
current delivery schedule which is greater than one hundred percent (100%) of
the total quantity shipped in the preceding sixty (60) day period.
2. EQUIPMENT ACCEPTANCE. The criterion for acceptance of Company Equipment
by Distributor shall be the successful operation of the Equipment using
Company's standard test procedures and diagnostic test programs applicable to
the Equipment involved.
3. SHIPMENT. All shipments of Equipment shall be made FOB Company's plant
and liability for loss or damage in transit, or thereafter, shall pass to
Distributor upon Company's delivery of Equipment to a common carrier for
shipment. Shipping dates are approximate and are based, to a great extent, on
prompt receipt by Company of all necessary ordering information from
Distributor. Distributor shall bear all costs of transportation and insurance
and will promptly reimburse Company if Company prepays or otherwise pays for
such expenses.
/s/ PH
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Company shall not be in default by reason of any failure in its
performance under this Agreement if such failure results from, whether
directly or indirectly, fire, explosion, strike, freight embargo, act of god
of the public enemy, war, civil disturbance, act of any government de jure or
de facto or agency or official thereof, material or labour shortage,
transportation contingencies, unusually severe weather, default of any other
manufacturer or a supplier or subcontractor, quarantine,
restriction, epidemic, or catastrophe, lack of timely instructions or
essential information from Distributor or otherwise arisen out of causes
beyond the control of the Company. Nor shall the Company, at any time, be
liable for any incidental, special or consequential damages.
4. DELAY. Distributor may not delay shipment unless Company accepts
written notice at least fifteen (15) days prior to the scheduled delivery
date. In the event Distributor delays delivery for more than ten (10) days
with accepted notification as set forth above, Distributor shall pay to
Company, as a service charge, an amount equal to ten percent (10%) of the
total purchase price.
5. CANCELLATION. Distributor may not under any circumstances cancel any or
all Equipment on order.
ARTICLE IV
PROPRIETARY RIGHTS
1. USE OF COMPANY NAME. Company expressly prohibits any direct or indirect
use, reference to, or other employment of its name, trademarks, or trade name
exclusively licensed to Company, except as specified in the Agreement or as
expressly authorized by Company in writing. All advertising and other
promotional material will be submitted to Company at least two weeks in
advance and will only be used if Company consents thereto, which consent shall
not be unreasonably withheld. Company hereby authorizes and requires
Distributor's use of the Company's insignia or lettering which will be on the
products at the time of delivery.
2. PATENT INDEMNITY. Company agrees, at its own expense, to indemnify,
defend and hold harmless each Distributor and its customers from and against
every expense, damage, cost and loss (including attorneys' fees incurred) and
to satisfy all judgments and decrees relating from a claim, suit or proceeding
insofar as it is based upon an allegation that the Equipment or any part
thereof furnished by Company or any process which is practiced in the
customary use of the Equipment is
/s/ PH
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Initial
or has been infringing upon any patent, copyright or proprietary right, if
Company is notified promptly of such claim in writing and given authority and
fully and proper information and assistance (at Company's expense) for the
defense of same. In case the Equipment or any part thereof, in such is held
to constitute an infringement and the use of said Equipment or part is
enjoined, Company shall, in its sole discretion and at its own expense, either
procure for the indemnitee the right to continue using said Equipment or part
or replace or modify the same with non-performance or capacity or affect its
compatibility with the hardware or firmware comprising the Equipment or the
software utilized thereon.
3. DRAWINGS AND DATA. The company normally supplies all necessary data for
the proper installation, test, operation and maintenance of its Equipment.
Portions of this date are proprietary in nature and will be so marked. The
Distributor agrees to abide by the terms of such marking and to be liable for
all loss or damage incurred by the Company as a result of the improper or
unauthorized use of such data. The Company retains for itself all proprietary
rights in and to all designs, engineering details and other date pertaining to
any Equipment developed as a result thereof, including the sole right to
manufacture any and all such products. The Distributor shall not contact the
Company's suppliers, or any other person(s) for the purpose of manufacture.
4. TITLE TO PRODUCTS AND DOCUMENTATION PACKAGE. Distributor acknowledges
that the Equipment and documentation listed in Schedule 1 are the property of
Company and that the products are being made available to Distributor in
confidence and solely on the basis of its confidential relationship to
Company, Distributor agrees not to print, copy, provide or otherwise make
available, in whole or in part, any portion of an original or modified
Equipment Documentation Package or related materials.
ARTICLE V
WARRANTY
1. EQUIPMENT WARRANTY. Company warrants that Distributor shall acquire
Equipment purchased hereunder free and clear of all liens and encumbrances
except for Company's purchase money security interest defined in Article 1, 4
above. Company further warrants all Equipment to be free from defects in
material or workmanship under normal use and services for a period of three
(3) years from the date of delivery. However, all electrical components such
as motors and switchgear will only be warranted for 12 months in line with the
component manufacturers standard warranty.
/s/ PH
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Initial
All repair covered by this warranty must be done at Company's factory, or
other such warranty repair facilities of Company as designated by Company
unless Company specifically directs that his service be performed at another
location. Any defect corrected within one hundred eighty (180) days and found
to be within this scope of the warranty will be repaired by Company and all
charges for labour and material will be borne by Company. If is determined
that either no fault exists in Company, or the damage to be repaired was
caused by negligence of Distributor, its agents, employees or customers,
Distributor agrees to pay all charges associated with each such repair.
THIS CONSTITUTES THE SOLE WARRANTY MADE BY COMPANY EITHER EXPRESSED OR
IMPLIED, THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED WHICH EXTEND
BEYOND THE FACE HEREOF, HEREIN, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL
COMPANY BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES AND DISTRIBUTOR'S
REMEDIES SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF NONCONFORMING UNITS OR
PARTS.
2. MISUSE OF EQUIPMENT. Any tampering, misuse or negligence in handling or
use of Equipment renders the warranty void. Further, the warranty is void if,
at anytime, distributor attempts to make any internal changes to any of the
components of the equipment; if at any time the power supplied to any part of
the Equipment exceeds the rated tolerance; if any external device attached by
Distributor creates conditions exceeding the tolerance of the Equipment; or if
any time the serial number plate is removed or defaced. OPERATION OF THE
EQUIPMENT THAT RENDERS THIS WARRANTY VOID WILL BE DEFINED TO INCLUDE ALL OF
THE POSSIBILITIES DESCRIBED IN THE PARAGRAPH, TOGETHER WITH ANY PRACTICE WHICH
RESULTS IN CONDITIONS EXCEEDING THE DESIGN TOLERANCE OF THE EQUIPMENT.
ARTICLE VI
SPARES
1. AVAILABILITY. Spares, as used herein, shall be defined as Company's
standard subassemblies and parts used to fabricate and/or repair the Equipment
manufactured by the Company. Company shall make spares for purchase by
Distributor for a period of not less than (3) years after shipment of the last
unit to Distributor hereunder. Such spares will be available to Distributor
at prices, terms and conditions in effect at the time such spares are
purchased. No provision in this Paragraph, or in any other part of the
Agreement, shall relieve Distributor of Distributor's responsibility to stock
spares. Distributor is expected to maintain an adequate inventory of spares
to support the Equipment purchased hereunder.
/s/ PH
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ARTICLE VII
DURATION OF AGREEMENT
1. TERM. The term of this agreement shall be for one (1) years from the
date hereof, unless sooner terminated. Termination shall not relieve either
party of obligations incurred prior thereto.
2. TERMINATION. The agreement may be terminated only:
a) By either party for substantial breach of any material provision of
the Agreement by the other, provided due notice has been given to
the other of the alleged breach and such other party has not cured
the breach within thirty (30) days thereof or:
b) By the Company if: there is an unacceptable change in the control
or management of the distributor; if the Distributor ceases to
function as a going concern or makes an assignment for the benefit
of creditor; if a petition in bankruptcy is filed by or against the
Distributor resulting in an adjudication of bankruptcy, or, if the
Distributor fails to pay its debts as they become due and provided
due notice has been given by the Company go the Distributor and the
Distributor has not cured such breach within thirty (30) days
thereof;
c) Upon termination of the Agreement, all further rights and
obligations of the parties shall cease, except that Distributor
shall not be relieved of (i) its obligations and (ii) any other
obligation set for the in this Agreement which is to take effect
after the date of termination. Distributor shall have the right to
continue spare parts in accordance with Article VI.
ARTICLE VIII
NOTICES
1. NOTICES OR COMMUNICATION. Any notice or communication required or
permitted hereunder (other than Administrative Notice) shall be in writing and
shall be sent by registered mail, return receipt requested, postage prepaid
and addressed to the addresses set for the below or to such changed address as
any party entitled to notice shall have communicated in writing to the other
party. Notices and communication to Company shall be sent to;
TRIPAX ENGINEERING CO.
00 Xxxxx Xxxxxx,
Xxxxxxxxx. 0000
Xxxxxxxx
Xxxxxxxxx
/s/ PH
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Notices and communications to Distributor shall be sent to address shown
on first page of the agreement. Any notices or communications to either party
hereunder shall be deemed to have been given when deposited in the mail,
addressed to the then current address of such party.
2. DATE OF EFFECTIVENESS. Any such notice or communication so mailed shall
be deemed delivered and effective seventy two (72) hours after mailing thereof
in Australia.
ARTICLE IX
GENERAL PROVISIONS
1. RELATIONSHIP OF PARTIES. The relationship between the parties
established by this Agreement shall be solely that of vendor and vendee and
all rights and powers not expressly granted to Distributor are expressly
reserved to the Company. The Distributor shall have no right, power of
authority in any way to bind the Company to the fulfilment of any condition
not therein contained, or to any contract or obligation, expressed or implied.
2. INDEPENDENCE OF PARTIES. Nothing contained in this Agreement shall be
construed to make the Distributor the agent for the Company for any purpose,
and neither party hereto shall have any right whatsoever to incur any
liabilities or obligations on behalf or binding upon the other party. The
Distributor specifically agrees that it shall have no power or authority to
represent the Company in any manner; that it will solicit orders for products
as an independent contractor in accordance with terms of the 'Agreement; and
that it will not at any time represent the Company in any manner; and that it
will not at any time represent orally or in writing to any person or
corporation or other business entity that it has any right, power or authority
not expressly granted by this agreement.
3. INDEMNITY. The Distributor agrees to hold the Company free and harmless
form any and all claims, damages and expenses of every kind or nature
whatsoever (a) arising from acts of the Distributor; (b) as a direct or
indirect consequence of termination of this Agreement in accordance with its
terms; or (c) arising from acts of third parties in relation to products sold
to Distributor under this Agreement, including, but not limited to, execution
of Liens and security interest by third parties with respect to any such
products.
/s/ PH
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Initial
4. ASSIGNMENT. This Agreement constitutes a personal contract and
Distributor shall not transfer or assign same or any part thereof without the
advance written consent of Company.
5. ENTIRE AGREEMENT. The entire Agreement between the Company and the
Distributor covering the Equipment is set forth herein and any amendment to
modification shall be in writing and shall be executed by duly authorized
representatives in the same manner as the Agreement. The provisions of this
Agreement are severable, and if any one or more such provisions are determined
to be illegal or otherwise unenforceable, in whole or in part, under the laws
of any jurisdiction, the remaining provisions or portions hereof shall,
nevertheless, be binding on and enforceable by and between the parties hereto.
Any provisions, terms or conditions of Distributor's Purchase Order
which are, in any way contradicting of the Agreement, except those additional
provisions specifying quantity and shipping instructions, shall not be binding
upon Company and shall have no applicability to the sale of goods by Company
to Distributor.
6. APPLICABLE LAW. This Agreement shall be governed by the laws of the
state of Victoria Australia and is accepted by Company and its corporate
office in Bayswater, Victoria, Australia.
7. SEPARATE PROVISIONS. If any provision of this Agreement shall be held
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall no way be affected or
impaired thereby.
IN WITNESS WHEREOF; the parties have caused the Agreement to be executed by
their duly authorized officers as of the date and year indicated above.
COMPANY.
/s/ Xxxx Xxxx Xxxxxx 09/08/2005
BY:______________________________________ DATE:_____________________
Xxxx Xxxx Xxxxxx, Managing Director
DISTRIBUTOR
/s/ Xxxx Xxxxxxx 09/09/2005
BY:______________________________________ DATE:_____________________
Xxxx Xxxxxxx, President and CEO
/s/ PH
Initial ________
Exhibit A Product price list
Exhibit B Description of Territory
