AMENDMENT 1 TO THE MACH 3 EYII DISTRIBUTORSHIP AGREEMENT FOR MACH 3 ECOLOGICAL
PRODUCTS
THIS AGREEMENT (this "Agreement") is made and entered into as of July 20, 2007
and amended this 10th day of August, 2007by and between MACH 3 Manufacturing,
LLC a limited liability company duly registered in the State of Nevada,
hereinafter called MACH 3 and Essentially Yours Industries (International)
Limited, hereinafter called DISTRIBUTOR.
R E C I T A L S:
WHEREAS, MACH 3 has acquired the authority and developed a certain
line of ecological products such as Mach 3 SEFS HD that has been specifically
formulated for fuel enhancement catalysts for heavy duty diesel internal
combustion engines, turbines, locomotives , open combustion furnaces and
boilers, power generating and marine diesel engines."MACH 3 SEFS HD"
hereinafter called the PRODUCT.
The PRODUCT is a fuel additive that has been registered with the US EPA
(#1927-0002) and is to be certified with fuel saving and emission test reports
in accordance with EPA 511 Test Protocol, FTP-75, SAE J1321, 40 CFR 86 and
California Title 13 by Automotive Testing and Development Services, Inc.
(ATDS),an independent testing laboratory recognized by the US EPA and the
California Air Resources Board (CARB)
Mach 3 shall assist the DISTRIBUTOR on all technical matters regarding
local certification and registration process of the product in any country
mentioned in this agreement. If there is a delay in registration or the
certification process, the DISTRIBUTOR will submit to Mach 3 a request for
an extension of the initial product purchase order and Mach 3 will not
unreasonably deny such request or extension.
MACH 3 has the exclusive worldwide rights under license from Xxxxxx
Xxxxx to manufacture and to distribute the PRODUCT and its future generation
of improvement from time to time, and desires the assistance of DISTRIBUTOR
in its efforts to market and distribute the PRODUCT.
1. RELATIONSHIP.
1.1 Appointment.
(a) Upon the terms, and subject to the terms and conditions, contained
herein, MACH 3 hereby appoints DISTRIBUTOR as a distributor of the PRODUCT in
The Philippines, Taiwan, Japan, Malaysia, Thailand, Indonesia, Singapore,
India,Pakistan, Vietnam, Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxx, XXX, Xxxxxx and
Mexico. The rights granted hereunder shall permit the DISTRIBUTOR to market
and to sell the PRODUCT anywhere within the countries listed above, provided
a minimum initial order of $500,000 of PRODUCT is made for a specific country
within 120 days of MACH 3 providing the DISTRIBUTOR with copies of PRODUCT
testing results.
Mach 3 will not guarantee the availability of distribution rights to DISTRIBUTOR
in any one of the countries listed above where no minimum initial order has
been made. Refer to Item 6.3 for Non-Circumvention and Special Limited Time
Exclusive Rights to sell to specific customer(s) for details. DISTRIBUTOR shall
notify Mach 3 in writing of the full identity of any and all Sub-distributors.
1.2 Acceptance of Appointment. DISTRIBUTOR hereby accepts the
appointment as provided in Section 1.1 above, and hereby agrees fully and
faithfully to perform and discharge all of its duties, obligations and
responsibilities as set forth in this Agreement. It is understood and agreed
that the Authorized Distributor status is maintained with special privileges
to order the PRODUCT at the Special Authorized Distributor Prices as shown in
Schedule A, which may be revised from time to time with minimum 30 days written
notice. If the increase is more than 5%, then MACH 3 shall provide the
DISTRIBUTOR with 60 days written notice. DISTRIBUTOR hereby also acknowledges
the proprietary and intellectual property rights of MACH 3 in the PRODUCT as
well as the exclusive distribution rights of MACH 3 and Chinaoil (USA) Inc.
in the said PRODUCT. In order to obtain the concession of the exclusive
distribution rights from Chinaoil (USA) Inc. to sell the PRODUCT in countries
as listed above, DISTRIBUTOR hereby irrevocably agrees to pay 3.0% of the
DISTRIBUTOR wholesale purchase price as an override to CHINAOIL (USA) Inc.
at time of the order of the PRODUCT. This 3% overide shall be increased to
3 1/2% in year two and further adjusted to 4% from year three onwards.
1.3 Competing Products. During the term of this Agreement, DISTRIBUTOR
and all officers, directors, shareholders, employees, agents or representatives
of a company to be formed (collectively, "Agents"), and any entity in which
DISTRIBUTOR or any of its Agents has a direct or indirect controlling ownership
interest, shall not, directly or indirectly, promote, sell or distribute any
fuel additive or similar product(s) which are directly competitive with the
PRODUCT. Any such violation by the DISTRIBUTOR shall have the DISTRIBUTOR
immediately deemed to be in default of this Agreement.
1.4 Independent Contractor. The relationship of MACH 3 and
DISTRIBUTOR established by this Agreement is that of independent contractors.
Nothing contained in this Agreement shall be construed to (a) give either
party hereto the power to direct and control the day-to-day activities of
the other, or (b) constitute the parties as partners, joint ventures,
co-owners or otherwise as participants in a joint or common undertaking.
Neither party hereto nor any of its Agents is the representative of the
other party for any purpose except as MACH 3 has set forth in this
Agreement, and has no power or authority as agent, employee or in any
other capacity to represent, act for, bind, or otherwise create or
assume an obligation on behalf of the other for any purpose whatsoever.
All financial obligations associated with Distributor's business are the
sole responsibility of DISTRIBUTOR. All sales and other agreements between
DISTRIBUTOR and its customers are DISTRIBUTOR 's sole responsibility and
shall have no effect on MACH 3's obligations under this Agreement. MACH 3
shall substantiate and be responsible for any information and/or claims
provided to the DISTRIBUTOR.
1.5 Product Development. From time to time, DISTRIBUTOR may
recommend certain packaging modifications to the existing PRODUCT and MACH 3
shall work with DISTRIBUTOR to coordinate in developing the same into viable
commercial products to the extent that MACH 3 believes such recommendations
are viable. The use of the PRODUCT labels must comply with the provisions
of 8.4 and 8.5, as applicable. No representations regarding the PRODUCT
shall be made in any private label or branded marketing materials,
packaging etc. without the prior written approval of MACH 3, which
approval shall not be unreasonably withheld.
1.6 Promotional Duties.
(a) DISTRIBUTOR shall (i) exert its best efforts consistent with
sound business planning and projected profitability and sales potential
to introduce and diligently advertise, promote, sell, distribute, and
service (collectively, "Marketing") the PRODUCT, (ii) make use of, and
disseminate to its existing customers, and to potential purchasers, all
promotional materials, if any, supplied by MACH 3, and (iii) cooperate
with MACH 3 in activities directed toward the Marketing of the PRODUCT.
At MACH 3's request, DISTRIBUTOR shall make immediately available to
MACH 3 copies of all print and electronic Marketing materials used by
it for the PRODUCT.
(b) DISTRIBUTOR shall at all times demonstrate and otherwise
represent the PRODUCT fairly and accurately in comparison with
competitive products from other manufacturers, shall make no false
or misleading representations with regard to the PRODUCT, and shall
not make any representations with respect to the specifications,
features or capabilities of the PRODUCT which is not consistent
with those described in the product literature or other material
supplied by MACH 3.
(c) MACH 3 shall assist DISTRIBUTOR in its efforts by making
available reasonable quantities of such marketing materials as MACH 3
has developed and/or jointly developing such marketing materials with
DISTRIBUTOR as DISTRIBUTOR may recommend.
1.7 Technical Support. MACH 3 shall provide DISTRIBUTOR with
such technical support regarding the PRODUCTS as is reasonably
necessary for DISTRIBUTOR to assist MACH 3 under this Agreement,
including but not limited to copies of all applicable test results
of PRODUCT.
1.8 Reporting Obligations of DISTRIBUTOR. DISTRIBUTOR shall
provide to MACH 3, no later than the 30th day of each calendar month,
as to the following month, DISTRIBUTOR sales projection reports setting
forth the non binding projected sales of each size of the PRODUCT for
the next 2 months for MACH 3 to make reasonable preparations, as well
as such other information that MACH 3 may reasonably request from time
to time.
2. PURCHASE OF PRODUCT
2.1 Ordering Procedure. Purchase of PRODUCT shall be made by
DISTRIBUTOR by means of Purchase Orders submitted to MACH 3. Each such
Purchase Order shall specify the number of units of the PRODUCT ordered
by DISTRIBUTOR, the desired date and location of delivery, which shall
have a minimum time span of 60 days from the date of order. MACH 3 shall
use its best efforts to comply with the requirements of DISTRIBUTOR on
the terms and conditions of this Agreement. However, MACH 3 shall not be
responsible for any delay of delivery due to acts of God and/or any
situations beyond its reasonable control as more particularly described
in Item 17 herein.
2.2 Purchase Order The DISTRIBUTOR shall submit each Purchase
Order for the PRODUCT. No additional or conflicting terms or conditions
may be proposed by DISTRIBUTOR in or in connection with any Purchase
Order, and no such additional or conflicting terms or conditions shall
be binding upon MACH 3 without its prior written consent.
2.3 Productions, Supply and Delivery of PRODUCT. During the
term of this Agreement or thereafter, MACH 3 reserves the right,
without obligation or liability to MACH 3, to manufacture, produce,
warehouse or source the PRODUCT initially in California and later at
any worldwide location, including locations outside of the United States
of America. The PRODUCT ordered by DISTRIBUTOR shall be delivered F.O.B.
place of manufacturing. However, the freight for any products produced
outside the United States shall not exceed the freight from California.
MACH 3 further reserves the right, in its sole discretion with thirty
(30) days prior written notice to modify and/or improve the PRODUCT
and one hundred and twenty (120) days prior written notice to DISTRIBUTOR,
to discontinue the production of any superseded version of the PRODUCT.
2.4 Titles and Risk of Loss. Title to the PRODUCT thus ordered
and all risk of loss shall pass from MACH 3 to DISTRIBUTOR at the time
and place of MACH 3's delivery of the PRODUCT to a common carrier for
delivery to DISTRIBUTOR in accordance with the delivery terms prescribed
in each purchase order, notwithstanding that MACH 3 may retain rights of
possession or repossession to ensure collection of the purchase price
thereof. DISTRIBUTOR shall be solely responsible for insuring the PRODUCT
after delivery to a common carrier for delivery to DISTRIBUTOR. DISTRIBUTOR
shall designate the common carrier used for transportation of the PRODUCT.
MACH 3 shall not be responsible for any delay caused by the carrier.
2.5 Inspections and Rejection. Upon receipt of delivery of
PRODUCT on order is ready for delivery at the factory gate, the DISTRIBUTOR
or its authorized representative reserves the right within 3 business days
from day of notice to DISTRIBUTOR to inspect the PRODUCT for approval or
rejection for compliance with the specifications of the packaging for
quality control as specified in the Purchase Order.
3. PRICING STRUCTURE OF PRODUCT.
3.1 It is understood and agreed that confidentiality of the
Special Authorized Distributor Price structure of the PRODUCT is for the
mutual protection of DISTRIBUTOR and MACH 3. Violation of such confidential
information by any authorized, DISTRIBUTOR or any of its personnel shall be
deemed to be in default. DISTRIBUTOR shall be responsible to regulate such
violation(s). Failure by DISTRIBUTOR to regulate any such parties shall
have DISTRIBUTOR deemed to be in default of this Agreement. DISTRIBUTOR
will therefore be fully and solely responsible to all consequences and
remedies. The Special Authorized Distributor Price list of PRODUCT is
subject to change upon sixty (60)-calendar days notice.
3.2 UNIFORM RETAIL PRICE STRUCTURE. It is understood and agreed
that all parties hereto will maintain a Uniform Retail Price structure
set jointly by MACH 3 and DISTRIBUTOR in order to maintain a stable market
condition of the PRODUCTS for the protection of all parties. Violation to
sell the PRODUCTS by DISTRIBUTOR at discounts unauthorized by MACH 3 is
prohibited. Any repeated violation after written warning would constitute
the violating party in default of this Agreement. DISTRIBUTOR, however,
be allowed to market and sell product at prices that are more expensive
than the Uniform Retail Price structure.
3.3 SCHEDULE A herewith attached and known as "The Special
Distributor Price List of Mach 3 SEFS HD" and SCHEDULE B "Descriptions
and MSRP for the PRODUCT" their subsequent revisions, if any, shall be
an integral part of this Agreement.
4. PAYMENT FOR PRODUCTS.
4.1 Payment Terms.
i) DISTRIBUTOR shall pay by cash or cashier's check or wire transfer
directly into MACH 3 appointed bank account for the full amount of the
purchase up to the amount of $100,000 upon submitting the Purchase Order,
exclusive of shipping costs.
ii) For orders exceeding $100,000, exclusive of shipping costs, DISTRIBUTOR
shall elect to pay in full of the Purchase Order by wire transfer or to
pay a deposit equal to FIFTY PERCENT (50%) of the Purchase Order together
with an irrevocable letter of credit ("ILOC") for the balance FIFTY PERCENT
(50%) acceptable to the bank or banking agent of MACH 3 plus shipping costs,
if any. MACH 3 may assign such ILOC to any party and upon commencement of
manufacturing of the PRODUCT so ordered by DISTRIBUTOR and to collect the
balance 50% of the total purchase order guaranteeing payment by such ILOC
upon delivery of the PRODUCT to the common carrier F.O.B. of MACH 3's
premises of manufacturing or warehousing. The ILOC shall be directly
cashable. The irrevocable letter of credit provisions as described above
may be substituted by cash and/or cashier's checks and or wire transfer or
other means acceptable to MACH 3.
5. REPRESENTATIONS AND WARRANTIES. DISTRIBUTOR represents and warrants
to MACH 3 that it: (a) has full and unrestricted authority to enter into
this Agreement and, by executing, delivering or performing under this
Agreement, it will not breach any agreement to which it is currently a
party; (b) has the legal right, free of any right or interest of any
third party, to perform its obligations hereunder; and (c) currently is
in material compliance with all applicable Laws and has received all
applicable product safety certifications and registrations from
appropriate governmental entities necessary to perform its obligations
under this Agreement. MACH 3 represents and warrants to DISTRIBUTOR
that it: (a) has full and unrestricted authority to enter into this
Agreement and, by executing, delivering or performing under this Agreement,
it will not breach any agreement to which it is currently a party;
(b) has the legal right, free of any right or interest of any third party,
to perform its obligations hereunder; (c) currently is in material
compliance with all applicable Laws and has received all applicable
product safety certifications and registrations from appropriate
governmental entities necessary to perform its obligations under this
Agreement, and, (d) has legal ownership of the Products, free and clear
of any right or interest of any third party whatsoever.
5.1 AUTHORITY TO EXECUTE CONTRACT:
It is represented herein that Xxxxxx Xxxxx has the full and complete
authority to bind MACH 3 in executing the Distributorship Agreement and
any other related agreements with DISTRIBUTOR.
It is also represented herein that Xxxx Xxxxx X'Xxxxx has the full and
complete authority to bind DISTRIBUTOR in executing this Distributorship
Agreement and any other related agreements with MACH 3.
6. CONFIDENTIAL INFORMATION.
6.1 Definition. The Parties recognize that the relationship
created by this Agreement may involve access by the parties to
information of substantial value to each other, including, but not
limited to, designs, drawings, plans, software, programs, material
and manufacturing specifications, devices, trade secrets, applications,
formulae, know-how, methods, techniques, and processes (whether related
to product Patents (as such term is hereinafter defined), or otherwise),
as well as financial, business, marketing and product development
information, and customer lists including contact lists provided to
MACH 3 relating to the Products (collectively, "Confidential Information"),
provided that Confidential Information shall not include information:
(a) In the public domain or which subsequently falls into the
public domain;
(b) Specifically intended by MACH 3 for disclosure to
customers of DISTRIBUTOR;
(c) Which the recipient can prove was known through a source
independent of the disclosing party prior to any communication by the
disclosing party; or
(d) Disclosed to the recipient in good faith by a third party
having a legal right to do so.
6.2 Non-Disclosure. The Parties acknowledge and agree that
they own all rights, title and interest in and to their Confidential
Information. The Parties further agree that they shall (i) maintain the
secrecy and confidentiality of all Confidential Information which comes
to its attention, (ii) take all necessary precautions to prevent any
disclosure of Confidential Information by any of its Agents, and (iii)
during the term of this Agreement and for so long as Confidential
Information does not enter into the public domain through no act or
omission of DISTRIBUTOR, neither publish, disclose nor disseminate
any part of such Confidential Information, which shall include but
not limited to the Supply Price List of PRODUCT supplied by MACH 3
to DISTRIBUTOR,in any manner, or use the same, without the prior
written consent of MACH 3. Failure in strictly observing the obligation
of non-disclosure of any secret and confidential information without
the written consent of the other party shall result the disclosing
party deemed in default of this Agreement. The disclosing party
shall then be fully responsible for all consequences.
6.3 Non-Circumvention and Special Limited Time Exclusive
Rights to sell to specific customer(s).
a) The Parties wish to execute this Agreement to protect them within the
specific countries against the circumvention of one by the other through
unauthorized contacts with a party's business sources during the period
covered by the Agreement, provided that the claiming party is not in
default or bankruptcy.
b) The Parties wish to execute this Agreement for their joint protection
against the communication of information that is proprietary in nature,
and or that is intrinsically valuable or is potentially harmful to the
business of either of the parties, if divulged to another.
c) Mach 3 understands and agrees that they are prohibited from selling
products to any customer independently established by the DISTRIBUTOR,
provided that DISTRIBUTOR is not in default or bankrupt and no minimum
orders from or sales to that specific customer per year is made.
DISTRIBUTOR shall have 60 days to cure such default.
NOW THEREFORE THIS AGREEMENT witnesses that in consideration for good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
1. The Parties agree to refrain from soliciting business and contacts
from sources not their own or which have been made available to them
via this Agreement, without first obtaining the express permission of
the party who made the original introduction, provided that the original
party is not in default or bankrupt.
2. The Parties agree to keep confidential the names of any banks,
corporations, organizations, individuals, licensors, licensees, or
agents of any of the above, introduced by either of the Parties or
by the agent of a Party, to the other. The identities of these
individuals shall remain confidential during the term specified
in this Agreement. Information such as telephone, telex, or
computer databases and technical/commercial/financial data, as
well as any matter which could reasonably be expected to cause
technical/commercial/financial damages, directly or indirectly,
to either of the parties, shall be accorded confidentiality under
this Agreement.
3. This Agreement shall apply to all transactions executed or
initiated during the period of this Agreement. It shall apply to
principals and agents and shall include follow-up contacts, repeats,
roll-overs, extensions and renegotiated contracts or the equivalent.
4. Any violation of this Agreement shall entitle the wronged
party to compensation for such damage as may be reasonably shown
to have resulted from the violation.
5. This instrument contains the entire Agreement of parties.
This Agreement shall be construed under the laws of the state of
Las Vegas, Nevada, without reference to its conflict of laws rules,
and controversies and claims arising from this agreement shall
be brought only in the courts of Las Vegas, Nevada.
6.4 Injunctive Relief. The Parties understand and
agree that the Confidential Information has special value, the loss
of which cannot be reasonably or adequately compensated in damages
or in an action at law, and therefore, in the event of any breach
or violation of the provisions of this Section 6 by any party
to this Agreement, the other party shall be entitled to equitable
relief by way of injunction without bond and without the necessity
of proving actual damages, in addition to, and not in limitation of,
any other relief or rights to which they may be entitled. The terms
and provisions of this Section 6 shall survive any termination or
expiration of this Agreement.
7. PRODUCT WARRANTY. MACH 3 warrants and guarantees that all
products supplied to DISTRIBUTOR to be free of any design and or
manufacturing defects. Products that have been paid for and
delivered to DISTRIBUTOR, and found to be defective shall be
replaced to DISTRIBUTOR by MACH 3 at no extra charge to DISTRIBUTOR.
8. TRADEMARKS.
8.1 MACH 3's Marks and the Trademarks of "MACH 3 SEFS HD".
It is understood and agreed that MACH 3 owns or has the right to
use certain trademarks, service marks and/or trade names in
connection with the distribution, sale and promotion of the PRODUCT.
8.2 Use of MACH 3's Marks and/or the "MACH 3 SEFS HD"
Trademarks of the PRODUCT by DISTRIBUTOR. MACH 3 hereby assigns
to DISTRIBUTOR a non-exclusive right and license to use the
MACH 3'S Marks AND Trademarks of the PRODUCTS during the term
of this Agreement only in connection with the Marketing of
the PRODUCT including in the name of MACH 3. This right and
license shall not be assignable or transferable by, or subject
to any encumbrance of, DISTRIBUTOR in any manner whatsoever,
nor shall DISTRIBUTOR have the right to grant any sublicenses
without MACH 3's prior written consent. All rights with respect
to the MACH 3's Marks and the Trademarks of the PRODUCT and all
other trademarks, service marks and trade names used by MACH
3 not specifically granted to DISTRIBUTOR in this Agreement
shall be and hereby are reserved (ii) within thirty (30) days
of the expiration or other termination of this Agreement
DISTRIBUTOR shall change its name so as to no longer include
MACH 3's Marks and/or "MACH 3 SEFS HD" Trademarks after the
DISTRIBUTOR has completed the sale of all remaining inventory.
8.3 Acknowledgment of Ownership. DISTRIBUTOR
acknowledges that (i) MACH 3 owns the MACH 3's Marks and the
"MACH 3 SEFS HD" Trademarks of the PRODUCT and all goodwill
associated with or symbolized by the MACH 3's Marks and the
Trademarks of the PRODUCTS, (ii) MACH 3 owns the MACH 3 Marks
and Trademarks of the PRODUCT and all goodwill associated with
or symbolized by the MACH 3 Marks, (iii) DISTRIBUTOR has no
ownership right in or to any of the MACH 3 Trade Marks and or
MACH 3 Marks, (iv) DISTRIBUTOR shall acquire no ownership
interest in or to any of the MACH 3 Marks and/or the
"MACH 3 SEFS HD" Trademarks of the PRODUCT by virtue of
this Agreement, and (v) DISTRIBUTOR acknowledges that
the MACH 3's Marks and the "MACH 3 SEFS HD" Trademarks
of the PRODUCT have acquired secondary meaning. DISTRIBUTOR
shall do nothing inconsistent with MACH 3's ownership of
the MACH 3 Marks and the "MACH 3 SEFS HD" Trademarks of
the PRODUCT related goodwill and agrees that all use of
the MACH 3 Marks and the Trademarks of the PRODUCT by
DISTRIBUTOR shall inure to the benefit of MACH 3. Nothing
in this Agreement shall be deemed to constitute or result
in an assignment of any of the MACH 3 Marks and Trademarks
of the PRODUCT to DISTRIBUTOR or the creation of any equitable
or other interests therein. DISTRIBUTOR shall not use any of
the MACH 3's Marks and/or the "MACH 3 SEFS HD" Trademarks of
the PRODUCT in any manner as a part of its business, corporate
or trade name or otherwise in violation of this Section 8.
8.4 Form of Use. DISTRIBUTOR shall use MACH 3's Marks
and the "MACH 3 SEFS HD" Trademarks of the PRODUCT only in the
form and manner prescribed from time to time by MACH 3.
DISTRIBUTOR shall xxxx each Product and all Marketing or other
materials bearing any of the MACH 3's Marks and/or the
"MACH 3 SEFS HD" Trademarks of the PRODUCT with such notices
as MACH 3 may reasonably require, including, but not limited to,
notices that the MACH 3 Marks and the "MACH 3 SEFS HD" Trademarks
of the PRODUCT are trademarks of MACH 3 are being used with the
permission of MACH 3. It will be deemed reasonable for references
to the MACH 3 name, satisfactory in form and substance to the
DISTRIBUTOR and or MACH 3, to appear on all packaging and in all
of MACH 3's advertising of MACH 3 branded products.
8.5 Submissions. DISTRIBUTOR shall submit to MACH 3
for its written approval, before any use is made thereof,
representative samples of all stationery, invoices, catalogs,
brochures, packages, and marketing materials bearing any of the
MACH 3's Marks and/or the "MACH 3 SEFS HD" Trademarks of the
PRODUCT which DISTRIBUTOR or its Agents prepare. DISTRIBUTOR
shall not make any use of MACH 3 Marks and/or "MACH 3 SEFS HD"
Trademark of the PRODUCT unless and until it receives MACH 3's
prior written approval. MACH 3 shall have the absolute respective
right to approve or reject any proposed use of any of the MACH
3 Marks and the "MACH 3 SEFS HD" Trademark of the PRODUCT, in
its sole discretion. MACH 3 shall approve or reject each proposal
within forty eight hours (48) after submission, and Failure to
respond within such time period shall result in the automatic
approval of such proposal.
8.6 Registration. It is understood and agreed by DISTRIBUTOR
that MACH 3, as the originator and licensed manufacturer of the
PRODUCT shall have the sole right to take such action, as it deems
appropriate to obtain trademark registration for any of the
MACH 3's Marks and/or the "MACH 3 SEFS HD" Trademarks of the PRODUCT
in the Distribution Territory. If it shall be necessary for
DISTRIBUTOR to be the applicant to effect any such registrations,
DISTRIBUTOR shall cooperate with MACH 3 to effect any such
registrations, and hereby does assign all of its right, title and
interest in and to each such application, and any resulting
registration, to MACH 3, and shall execute all papers and documents
necessary to effectuate or confirm any such assignment. DISTRIBUTOR
shall perform all reasonable and necessary acts and execute all
necessary documents to affect the registration of the MACH 3's Marks
and The "MACH 3 SEFS HD" Trademarks of the PRODUCT as MACH 3 may
request, all at the sole expense of MACH 3. DISTRIBUTOR shall not
obtain or attempt to obtain in the Distribution Territory, or
elsewhere, any right, title or interest, registration, or otherwise,
in or to the MACH 3's Marks and or the "MACH 3 SEFS HD" Trademarks
of the PRODUCT, any applications or registrations therefore, or
any of them. In the event that any such right, title or interest
should be obtained by DISTRIBUTOR in contravention hereof,
DISTRIBUTOR shall hold the same on behalf of, and in trust for,
MACH 3 and shall transfer the same to MACH 3 upon request without
any expense to MACH 3.
8.7. Infringement Information. DISTRIBUTOR shall
notify MACH 3 promptly of any unauthorized use of the MACH 3 Marks
and or of any xxxx confusingly similar, thereto which comes to its
attention. Within twenty (20) days after MACH 3's receipt of such
notice, MACH 3 and DISTRIBUTOR shall decide jointly whether to
proceed with any claim or litigation, and each shall have the
right to do so independently if the other elects not to participate.
If any action taken by MACH 3 and DISTRIBUTOR is joint, then all
parties shall share equally in the costs and proceeds. If one
party elects to proceed with a claim or litigation independently,
the party, which proceeds with the claim or litigation, shall
retain all the proceeds thereof and shall bear all of the costs
thereof. If MACH 3 elects to make a claim or litigate,
DISTRIBUTOR may not proceed with its own separate claim or
litigation without first obtaining the written consents of
MACH 3 to do so. DISTRIBUTOR shall provide MACH 3 with all
reasonable assistance, at the expense of MACH 3, in any
prosecution of any such infringement, which MACH 3 may
decide to institute. If such infringement reduces the sales
of the Products by DISTRIBUTOR, then MACH 3 and DISTRIBUTOR
shall mutually agree upon a reduction of the Sales Requirement
during the period of such infringement. With respect to any
joint action, MACH 3 shall have the sole right to employ
counsel and to direct the handling of the action and
litigation and any settlement thereof. As to claims or
litigation with which DISTRIBUTOR decides to proceed but
in which MACH 3 elects not to participate, MACH 3 shall
provide DISTRIBUTOR with all reasonable assistance, at
DISTRIBUTOR's expense.
8.8 Termination of Use. Upon expiration or earlier
termination of this Agreement, DISTRIBUTOR shall cease using
MACH 3's Marks and/or "MACH 3 SEFS HD" Trademarks of the
PRODUCT in any manner, either similar or dissimilar to the
uses enumerated above upon the completion of the sale of all
remaining inventory.
9. PATENT OWNERSHIP AND RIGHTS TO INVENTIONS. DISTRIBUTOR
shall not be deemed by anything contained in this Agreement
or done pursuant to it to acquire any right, title or interest
in or to Product Patents (as such term is hereinafter defined)
or any patent now or hereafter covering or applicable to any
PRODUCTS, nor in or to any invention or improvement now or
hereafter embodied in any Product, whether or not such
invention or improvement is patentable under the laws of
any country.
10. If DISTRIBUTOR becomes aware that a third party is or
may be making unauthorized use of (a) any patent owned
by MACH 3, or for which MACH 3 has the exclusive right
of use, which relates to the Product Patents, or (b) any
other intellectual property rights relating to the PRODUCT
owned or controlled by MACH 3, DISTRIBUTOR shall promptly
give MACH 3 a written notice thereof, which notice shall
fully describe the potentially infringing actions of
such third party. Within twenty (20) days after receipt
of such notice by MACH 3, MACH 3 and DISTRIBUTOR shall
decide jointly whether to proceed with any claim or
litigation, and each shall have the right to do so
independently if the other elects not to participate.
If any action taken by MACH 3 and DISTRIBUTOR is joint,
then each party shall share equally in the costs and
proceeds. If one party elects to proceed with a claim or
litigation independently, the party, which proceeds with
the claim or litigation, shall retain all the proceeds
thereof, subject to the rights of licensors of MACH 3
regarding such proceeds, and shall bear all of the
costs thereof. If MACH 3 elects to make a claim or
litigate, DISTRIBUTOR may not proceed with its own
separate claim or litigation without first obtaining
the written consent of MACH 3 to do so. DISTRIBUTOR
shall provide MACH 3 with all reasonable assistance,
at the expense of MACH 3, in any prosecution of any
such infringement, which MACH 3 may decide to institute.
With respect to any joint action, MACH 3 shall have the
sole right to employ counsel and to direct the handling
of the action and litigation and any settlement thereof.
11. CLAIMS.
11.1 Product Liability Claims. DISTRIBUTOR shall
notify, as the case may be, MACH 3 in writing immediately
of any products liability claim or action brought with
respect to the PRODUCT based on alleged defects in the
design or manufacture of the PRODUCT. Upon receiving
such written notice, MACH 3 shall assume and have sole
control of the defense of any such claim or action,
including the power to conduct and conclude any and
all negotiations, compromises or settlements. DISTRIBUTOR
shall comply with all reasonable requests from MACH 3 for
information, materials or assistance, with respect to
the conduct of such defense at DISTRIBUTOR's expense,
provided MACH 3 shall reimburse reasonable out of
pocket expenditures of DISTRIBUTOR which MACH 3 approved
in advance in writing through MACH 3, provided further
that the retaining of any outside consultant, attorneys
and others requires the prior written consent of MACH 3.
MACH 3 shall be responsible for payment of all claims
based on the design or manufacture of the Products, and
all legal expenses and costs incurred in that regard.
Nothing in this Section 11.1 shall be construed as
requiring MACH 3 to conduct and or assume DISTRIBUTOR's
independent defense against any claim or action, to the
extent that such claim or action involves only the
independent conduct, acts or omissions of DISTRIBUTOR.
The foregoing represents the entire liability of MACH 3
as the case may be to DISTRIBUTOR through MACH 3 for
products liability claims or actions brought with respect
to product design or manufacturing defects.
11.2 Notice from DISTRIBUTOR. DISTRIBUTOR shall
promptly notify MACH 3 of any potential or actual
litigation or governmental legal activity within the
boundary of the Distribution Territory relating to the
Products or the business operations of MACH 3. DISTRIBUTOR
shall provide such notice within seven (7) days from the
time that DISTRIBUTOR learns of such litigation or activity.
MACH 3 shall have no liability for any judgment without such
notice, or any settlement, compromise, expenses or costs
made or incurred by DISTRIBUTOR without the consent of MACH 3.
11.3 Indemnification. Each party assumes sole
responsibility for all acts performed by it pursuant to
this Agreement and shall be solely responsible for all
Claims (as defined herein) in connection therewith. Each
party shall indemnify, defend and hold the other harmless
from any and all claims, actions, lawsuits, demands, costs,
liabilities, losses, damages and/or expenses (including
reasonable attorneys' fees and costs of litigation) by any
other party resulting from or relating to any acts, omissions
or misrepresentations of such party, its Agents or any of them
(collectively, "Claims"). As defined herein, "Claims" shall
not include claims or actions against DISTRIBUTOR resulting
solely from the Products' infringement of Third Party Rights
through no fault of DISTRIBUTOR or from product liability
claims or actions through no fault of DISTRIBUTOR.
11.4 Product Quality Complaints. DISTRIBUTOR shall
notify MACH 3 immediately in writing of any product quality
complaints and any product packaging quality complaints from
any party, including, without limitation, wholesalers,
retailers, consumers, or governmental entities. DISTRIBUTOR
agrees to coordinate any response to such complaints with
MACH 3 and to follow instructions of MACH 3 and that of MACH
3 in dealing with any such complaints.
12. PRODUCT LIABILITY INSURANCE. MACH 3 shall maintain
in full force and effect product liability insurance and
property damage insurance on its operations for a minimum
coverage of FIVE MILLION DOLLARS ($5,000,000) at a maximum
of ONE MILLION DOLLARS ($1,000,000) per incident within
the countries listed in Schedule X. Xxxx 3 shall have up
to 90 days to make such arrangement. However, as the annual
sales volumes of the PRODUCT increases beyond ONE HUNDRED
MILLION DOLLARS ($100,000,000) the coverage amount shall
also be increased proportionately to allow for the
eventuality of any class action with DISTRIBUTOR as co-insured.
13. TERM AND MINIMUM ANNUAL ORDER. Subject to the termination
provisions of Section 14 hereof, the term of this Agreement
shall commence on the date of this Agreement for a term of
THREE (3) YEARS (the "Initial Term"). The minimum annual order
requirements commence from the date MACH 3 provides the
DISTRIBUTOR with test results for the PRODUCT. The minimum annual
orders are as listed below. Notwithstanding the aforesaid,
unless terminated on six months advance notice or DISTRIBUTOR
is in incurable default of any terms of this Agreement, this
Agreement shall automatically be extended for a second term of
THREE (3) YEARS ("Renewal Term") on mutually agreeable term and
conditions:
(A)Year Minimum Orders of PRODUCT per Category A country in
Schedule A
1 US $ 2,000,000 (yearly qualification)
2 US $12,000,000 (yearly qualification)
3 US $26,000,000 (yearly qualification)
__________________
Total US $40,000,000 Minimum Orders of PRODUCT per Category A
country
(B)Year Minimum Orders of PRODUCT per Category B country as in
Schedule A
1 US $ 2,267,000 (yearly qualification)
2 US $13,595,000 (yearly qualification)
3 US $29,458,000 (yearly qualification)
__________________
Total US $45,320,000 Minimum Orders of PRODUCT per Category B
country
(C)Year Minimum Orders of PRODUCT per Category C country as in
Schedule A
1 US $ 2,550,000 (yearly qualification)
2 US $15,300,000 (yearly qualification)
3 US $33,150,000 (yearly qualification)
__________________
Total US $51,000,000 Minimum Orders of PRODUCT per Category c
country
(D)Year Minimum Orders of PRODUCT per Category D country as in
Schedule A
1 US $ 2,936,000 (yearly qualification)
2 US $17,616,000 (yearly qualification)
3 US $38,173,000 (yearly qualification)
__________________
Total US $58,725,000 Minimum Orders of PRODUCT per Category D
country
14 . LICENSING COMPENSATION. The DISTRIBUTOR intends to restructure
("RESTRUCTURE") its capitalization by increasing its authorized shares
to 30 million shares. In lieu of a licensing fee, the DISTRIBUTOR
agrees to award and issue Mach 3 FIVE PERCENT (5%) of its total
outstanding shares upon successful completion of the RESTRUCTURE.
15. TERMINATION. This Agreement shall remain in full force and
affect as specifically set forth in Section 13 hereof, unless earlier
terminated as follows:
(a) By mutual consent of the parties in writing at any time.
(b) By either party upon giving written notice to the other
party if such other party is in default of any term or provision herein
contained, and such default is not cured within thirty (30) days of
written notice of such default. Any such notice shall identify the
nature of the claimed default and the action or actions required to
cure each claimed default.
(c) By MACH 3's giving written notice to DISTRIBUTOR:
(i) if all or substantially all of DISTRIBUTOR's assets are
transferred to another person or entity other than the persons
or entities exercising ownership of DISTRIBUTOR at the date of this
Agreement; or (ii) if a court having jurisdiction in the premises
shall enter a decree or order means for relief in respect of DISTRIBUTOR
in an involuntary case under any applicable Bankruptcy, insolvency or
other similar law now or hereinafter in effect, or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrate (or similar
official) of DISTRIBUTOR or for any substantial part of its property,
or order the winding up or liquidation of its affairs, and such decree
or order shall remain unseated and in effect for a period of sixty
(60) consecutive days; or (iii) if DISTRIBUTOR shall commence a
voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent to the
entry of an order for relief in any involuntary case under any
such law, or consent to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian,
sequestrate (or similar official) of such party or for any
substantial part of its property, or make any general assignment
for the benefit of creditors, or fail generally to pay its debts
as they become due or shall take any action in furtherance of
any of the foregoing. (iv) Subsequent to DISTRIBUTOR repeatedly
violating the Non-disclosure against MACH 3 for three (3) or
more times in accordance with the provision(s) as contained
in Items 6.2.
16. EFFECT OF TERMINATION. Termination of this Agreement
shall not extinguish debts and other obligations created or
arising between the parties by virtue of this Agreement or by
virtue of contracts or arrangements entered into hereunder
before the effective date of termination of this Agreement
(the "Termination Date"). Without limiting the generality of
the foregoing, upon the Termination Date:
(a) DISTRIBUTOR shall not be relieved of its obligation
to (i) pay for the PRODUCT ordered by DISTRIBUTOR prior to
the Termination Date or (ii) receive and pay for all quantity
of the PRODUCT covered by orders which have been accepted
by MACH 3 prior to the Termination Date; MACH 3 shall be
obligated to complete all Product orders which were accepted
by MACH 3 prior to the Termination Date, provided that MACH
3 receives assurance satisfactory to MACH 3 in its sole
discretion that it will be paid in accordance with the
terms of this Agreement; and in each such case, DISTRIBUTOR
shall be permitted to distribute such PRODUCT as well as
any quantity of the PRODUCT in DISTRIBUTOR's inventory.
After the Termination Date, MACH 3 shall have no obligation
of any kind to accept any orders, for the Products or
otherwise, from DISTRIBUTOR.
(b) DISTRIBUTOR shall submit to MACH 3 within thirty
(30) days after the Termination Date a list of all the PRODUCT
owned by DISTRIBUTOR which were purchased from MACH 3 as of
the Termination Date; MACH 3 may, at its sole option, purchase
none or any of all such PRODUCT from DISTRIBUTOR upon written
notice of its intention to do so, at prices to be agreed upon
between the parties but in no event greater than MACH 3's
cost for such PRODUCT; after receipt of such PRODUCT from
DISTRIBUTOR, MACH 3 will pay DISTRIBUTOR for such quantity
of PRODUCT on thirty (30) day terms. DISTRIBUTOR shall permit
MACH 3 and its representatives to have access to its inventory
of the PRODUCT during Distributor's usual business hours for
purposes of inspection and verification of MACH 3's inventory
of PRODUCT after the Termination Date. At the option of
the DISTRIBUTOR, if MACH 3 does not purchase the remaining
inventory, then DISTRIBUTOR will be permitted to sell off the
PRODUCT.
(c) DISTRIBUTOR shall cease to use any Confidential
Information relating to or in connection with its continued
business operations and shall promptly return to MACH 3 any
and all registrations of the MACH 3's Marks "MACH 3 SEFS HD"
Trademarks of the PRODUCT and all physical, written and
descriptive matter (including all reproductions and copies
thereof) containing Confidential Information as MACH 3 shall
specify.
(d) Distributor's license to use the MACH 3's Marks
and the "MACH 3 SEFS HD" Trademarks of the PRODUCT shall
terminate.
(e) NEITHER PARTY or their parent, subsidiaries or
affiliate companies SHALL BE LIABLE TO THE OTHER PARTY FOR
DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, INCIDENTAL
OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF TERMINATION OF THIS
AGREEMENT IN ACCORDANCE WITH ITS TERMS.
17. EXCUSABLE DELAYS. MACH 3 shall not be liable for any
delay in the manufacture or delivery of the PRODUCTS pursuant
to the terms and provisions of this Agreement, or for any
damages suffered by DISTRIBUTOR by reason of such delay, when
such delay is, directly or indirectly, caused by, or in any
manner arises from, earthquakes, fires, floods, accidents,
riots, acts of God, war, governmental interference or
restrictions, strikes, labor difficulties, or any other cause
beyond the reasonable control of MACH 3, whether similar or
dissimilar to the foregoing. If any such delay occurs, MACH
3 shall make its best efforts to find alternative sources for
the ingredients to manufacture the PRODUCT and shall permit
DISTRIBUTOR to cancel its order and obtain the quantities of
PRODUCT in the canceled order from alternative sources, subject
to the approval of MACH 3 of the quality of such alternative
product(s).
18. GENERAL PROVISIONS.
18.1 Successor and Assigns. This Agreement shall inure
to the benefit of, and be binding upon, the respective successors
and assigns of the respective parties hereto; provided, however,
that neither party hereto shall have the right to assign any of
its rights under this Agreement without the prior written consent
of the other party which consent shall not be unreasonably withheld
or delayed, except that MACH 3 may assign its rights and interests
in this Agreement in connection with the merger or consolidation
of MACH 3 with a majority owned subsidiary of its parent company;
and provided, further, that neither party hereto shall be relieved
of its respective obligations hereunder upon any assignment, whether
voluntary, involuntary or by operation of law, of its rights under
this Agreement.
18.2 Notices. All notices, requests, demands and other
communications, which may be given or are required to be given under
this Agreement, shall be in writing and in English. All notices shall
be sent by facsimile transmission and confirmed by overnight courier,
and shall be deemed given on the date of such facsimile transmission.
All notices shall be addressed as set forth below:
If to MACH 3: MACH 3 Manufacturing, LLC.
00000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, President & General Manager
Telephone: 0-000-000-0000;
Fax: 0-000-000-0000
If to DISTRIBUTOR: Essentially Yours Industries(International) Limited.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, X. X. Xxxxxx X0X 0X0
Attention: Xxxx X'Xxxxx, President
Telephone: 0-000-000-0000;
Fax: 0-000-000-0000
Or to such other address as each party hereto may from time to time
designate by written notice to the other party as provided herein.
18.3 Governing Law. This Agreement has been executed and
delivered in, and shall be governed by and construed in accordance with
the laws of the State of Nevada without regard to its conflict of laws
provisions.
18.4 Resolution of Disputes. Any controversy or claim relating
to this Agreement (whether contract, tort, or both) or to the breach of
this Agreement shall be arbitrated by and in accordance with the then
existing commercial arbitration rules of the American Arbitration
Association, in Las Vegas, Nevada. The arbitrator may render a judgment
awarding actual compensatory damages only, and the arbitrator may award
no consequential, incidental, or punitive damages. Judgment on the award
rendered by such arbitrator may be entered in any court having
jurisdiction. Nothing in this Section 17.4 shall affect MACH 3's or
Distributor's right to bring an action or proceeding against the other
in the courts of any jurisdiction where the purpose of such action or
proceeding is to (i) seek injunctive relief or (ii) collect moneys due
and owing on account of failure to pay for Products or services provided
by the other. Service of process in any such action or proceeding brought
hereunder may be made by mailing copies of such process to the address
of the parties provided for in Section 17.2 hereto, provided that nothing
in this Section 17.2 shall affect the right to serve legal process in any
other manner permitted by law. In the event of any action or proceeding
to enforce this Agreement, the successful or prevailing party will be
entitled to recover its attorneys' fees actually incurred and other costs
incurred in any such action or proceeding, in addition to any other relief
to which it may be entitled.
18.5 Headings. The headings herein are for convenience only, do
not constitute a part of this Agreement, and shall not be deemed to limit
or affect any of the terms or provisions hereof.
18.6 Construction. Whenever in this Agreement the context so
requires, references to the masculine shall be deemed to include feminine
and the neuter, references to the neuter shall be deemed to include the
masculine and feminine, and references to the plural shall be deemed to
include the singular and the singular to include the plural. Any reference
in this Agreement to either party hereto shall include such party's Agents.
18.7 Waiver and Amendment. No waiver, amendment, modification or
change of any provision of this Agreement shall be effective unless and
until made in writing and signed by all of the parties hereto. No waiver,
forbearance or failure by any party hereto of its right to enforce any
provision of this Agreement shall constitute a waiver or estoppels of
such party's right to enforce any other provision of this Agreement or
a continuing waiver by such party of compliance with any provision.
18.8 Severability. The provisions of this Agreement are intended
to be interpreted and construed in a manner so as to make such provisions
valid, binding and enforceable. In the event that any provision of this
Agreement is determined to be partially or wholly invalid, illegal or
unenforceable, then such provision shall be deemed to be modified or
restricted to the extent necessary to make such provision valid, binding
and enforceable, or, if such provision cannot be modified or restricted
in a manner so as to make such provision valid, binding and enforceable,
then such provision shall be deemed to be excised from this Agreement
and the validity, binding effect and enforceability of the remaining
provisions of this Agreement shall not be affected or impaired in any
manner.
18.9 Cooperation. Each party hereto shall cooperate with the
other party hereto and shall take such further action and shall execute
and deliver such further documents as may be necessary or desirable in
order to carry out the provisions and purposes of this Agreement.
18.10 Counterparts and Facsimiles. This Agreement may be
executed in one or more counterparts by original or facsimile copies,
each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
18.11 Entire Agreement. This Agreement (including the exhibits
and schedules hereto, each of which is incorporated herein and made
a part of this Agreement) constitutes the entire agreement and understanding
of the parties hereto and terminates and supersedes any and all prior
agreements, arrangements and understandings, both oral and written, or
implied, between the parties hereto concerning the subject matter of
this Agreement. It is also agreed and understood that if any part of
this Agreement is deemed unenforceable, all other parts of this agreement
shall remain valid and in full force.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
ESSENTIALLY YOURS INDUSTRIES (International) Limited.
/s/ Xxxx X'Xxxxx
______________________________________
Xxxx X'Xxxxx President
MACH 3 Manufacturing , LLC
/s/ Xxxxxx Xxxxx
_______________________________________
Xxxxxx Xxxxx, President and General Manager
Acknowledged by: CHINAOIL (USA) INC.
/s/ Xxxxxxx Xx
_______________________________________
Xxxxxxx Xx, President
SCHEDULE A
Special Authorized Distributor Price List of "MACH 3 SEFS-HD", FOB Chino, CA
Unit Cash Price for Authorized Distributors Only:
DISTRIBUTOR PRICE 58% MSRP 57% MSRP 56% MSRP 55% MSRP MSRP for
QUANTITY (4 pallets) (8 pallets) (12 pallets) (Container) Customer
A)For CATEGORY-A Countries (Min. ordre for each Purchase Order: $500,000 for each country)
_______________________________________________________________________________________
1/2 gal bottle $87.00 $85.50 $84.00 $82.50 $149.50
5 L (169 fl oz) bottle $221.50 $217.50 $213.75 $210.00 $382.00
20 L (676 fl oz) pail $841.00 $826.50 $812.00 $797.50 $1,450.00
210 L (7,102 fl oz)
drum $8,540.00 $8,393.00 $8,246.00 $8,100.00 $14,725.00
_______________________________________________________________________________________
B)For CATEGORY-B Countries (Min. ordre for each Purchase Order: $566,500 for each country)
_______________________________________________________________________________________
1/2 gal bottle $98.31 $96.62 $94.92 $93.23 $169.50
5 L (169 fl oz) bottle $251.14 $246.81 $242.48 $238.15 $433.00
20 L (676 fl oz) pail $952.85 $936.42 $920.24 $903.37 $1,643.00
210 L (7,102 fl oz)
drum $9,675.82 $9,509.26 $9,342.72 $9,177.30 $16,688.00
_______________________________________________________________________________________
C)For CATEGORY-C Countries (Min. order for each Purchase Order: $637,500 for each country)
_______________________________________________________________________________________
1/2 gal bottle $110.49 $108.59 $106.68 $104.78 $190.50
5 L (169 fl oz) bottle $282.41 $277.31 $272.53 $267.75 $487.00
20 L (676 fl oz) pail $1,072.28 $1,053.79 $1,035.30 $1,016.81 $1,849.00
210 L (7,102 fl oz)
drum $10,888.85 $10,701.00 $10,513.65 $10,327.50 $18,775.00
_______________________________________________________________________________________
1. Product orders require 50% prepaid due and payable at time
of order with the balance 50% with irrevocable LC guarantee
acceptable to MACH 3's bank, due and payable within 3 days of
written notice of product ready for delivery FOB at southern
CA factory gate. DISTRIBUTOR shall be responsible for any
shipping, storage or warehousing charges and any other related
expenses should delivery of product be delayed only or be required
at DISTRIBUTOR request.
2. DISTRIBUTOR may arrange for independent third party inspection
of product at the factory at their cost with prior arrangement
and procedure being mutually acceptable.
3. Mach 3 shall provide packaging containing the DISTRIBUTOR
set marketing design.
4. Minimum 4 to 5 weeks lead time from the execution of this
Agreement and the product order in accordance with the Payment
Terms of Article 4.1 herein shall be allowed for MACH 3 to deliver
the first order of product. 4 to 5 weeks lead time shall be
required for subsequent orders.
SCHEDULE B
(A) MACH 3 HEAVY DUTY SUPER ECOFUEL SAVER
(SEFS- HD) DESCRIPTION AND CATEGORY A PRICING
(For the USA, Argentina, Australia, Brazil, Burma, Cambodia, Canada,
China, Greece, India, Japan,Malaysia, Mexico, New Zealand, Norway,
Pakistan, Philippines, Singapore, Taiwan, Thailand, Vietnam)
[Australia, Japan and New Zealand 120% MSRP pending]
PRODUCT DESCRIPTION:
MACH 3 SEFS-HD (US EPA Registration #1927-0002): Mach 3
SEFS-HD is non-metallic, biodegradable and completely environmentally
friendly. It contains only compounds of carbon, oxygen and hydrogen.
Mach 3 SEFS-HD has been developed to break down the clusters of
hydrocarbon molecular chains to allow cooler, longer, more uniform
and more complete combustion.
MACH 3 SEFS-HD has been specially formulated for high performance
gasoline internal combustion engines, heavy duty diesel internal
combustion engines, turbines, locomotives, open combustion
furnaces & boilers, power generating and marine diesel engines.
1 oz (30 ml) of MACH 3 SEFS-HD blended with 15.6 gal (60 L) of diesel
(1:2,000 ratio) will produce lower emissions, more engine power,
smoother running and the potential for fuel consumption reductions
in excess of 16%. It will also help to remove carbon deposits for
improved performance and longer engine life. Mach 3 recommends an
initial dosage of 2 oz (60 ml) per 15.6 gal (60 L) of fuel
(1: 1,000 ratio).
Independent testing from a United States Environmental Protection
Agency (EPA) recognized laboratory has shown an unprecedented 16%
reduction in fuel consumption in vehicles running on SEFS-HD treated
fuel. Purchased at MSRP and blended at the recommended rate, Mach 3
SEFS-HD will effectively reduce your fuel cost by $0.456/gal ($0.120/L)
at a cost of only $0.138/gal to $0.156/gal ($0.0365/L to $0.0412/L)
with fuel cost at $2.85 /gal ($0.753/L) or higher. Many vehicles have
achieved even greater fuel savings of over 25%. Vehicle type, fuel
type, mechanical condition, payload, atmospheric conditions, road
conditions and driving habits all have a profound effect on mileage.
The preceding mileage claims were achieved in real world and testing
protocol controlled driving conditions but do not represent a guarantee
of actual performance. Individual results may vary. In any case, Mach
3 SEFS-HD at MSRP actually pays you in fuel savings at triple its cost
in the US and even more in most other countries in the world where
fuel cost is higher!
Mach 3 SEFS-HD has also been proven to reduce NOx emissions by 44%,
CO emissions by 33% and HC emission by 7%. SEFS-HD also significantly
reduces particulate emissions. This can allow vehicles that were
previously unable to meet emissions standards to pass emissions
testing. While SEFS-HD has been proven to significantly reduce
vehicle emissions, it cannot replace proper maintenance and repairs.
MSRP for the USA, Argentina, Australia, Brazil, Burma, Cambodia, Canada
China, Greece, India, Japan, Malaysia, Mexico, New Zealand, Norway,
Pakistan, Phillippines, Singapore, Taiwan, Thailand, Vietnam (Category A):
1/2 gal bottle
(64 fl oz or 1.92 L) to blend 1,000 gal (3,840 L) of fuel: $149.50
5 L bottle
(1.33 gal or 169 fl oz) to blend 2,650 gal (10,000 L) of fuel: $382.00
20 L pail
(5.28 gal or 676 fl oz) to blend 10,540 gal (40,000 L) of fuel:$1,450.00
000 X xxxx
(00.00 xxx) to blend 110,770 gal (420,000 L) of fuel: $14,725.00
SCHEDULE B
B) MACH 3 HEAVY DUTY SUPER ECOFUEL SAVER (SEFS-HD) DESCRIPTION AND
CATEGORY-B PRICING (for Hong Kong, Japan and Macau)
PRODUCT DESCRIPTION:
MACH 3 SEFS-HD (US EPA Registration #1927-0002): Mach 3 SEFS-HD is
non-metallic, biodegradable and completely environmentally friendly.
It contains only compounds of carbon, oxygen and hydrogen. Mach 3 SEFS-HD
has been developed to break down the clusters of hydrocarbon molecular
chains to allow to allow for cooler, longer, more uniform and more
complete combustion.
MACH 3 SEFS-HD has been specially formulated for high performance
gasoline internal combustion engines, heavy duty diesel internal
combustion engines, turbines, locomotives, open combustion furnaces
and boilers, power generating and marine diesel engines.
1 oz (30 ml) of MACH 3 SEFS-HD blended with 15.6 gal (60 L) of
diesel (1:2,000 ratio) will produce lower emissions, more engine
power, smoother running and the potential for fuel consumption
reductions in excess of 16%. It will also help to remove carbon
deposits for improved performance and longer engine life. Mach 3
recommends an initial dosage of 2 oz (60 ml) per 15.6 gal (60 L)
of fuel (1: 1,000 ratio).
Independent testing from a United States Environmental Protection
Agency (EPA) recognized laboratory has shown an unprecedented 16%
reduction in fuel consumption in vehicles running on SEFS-HD treated
fuel. Purchased at MSRP and blended at the recommended rate, Mach 3
SEFS-HD will effectively reduce your fuel cost by $0.606/gal
($0.160/L) at a cost of only $0.151/gal to $0.169/gal ($0.0397/L
to $0.0441/L) with fuel cost at $3.785/gal ($1.00/L) or higher. Many
vehicles have achieved even greater fuel savings of over 25%. Vehicle
type, fuel type, mechanical condition, payload, atmospheric
conditions, road conditions and driving habits all have a profound
effect on mileage. The preceding mileage claims were achieved in real
world and testing protocol controlled driving conditions but do not
represent a guarantee of actual performance. Individual results may
vary. In any case, Mach 3 SEFS-HD at MSRP actually pays you in fuel
savings at triple its cost in the US and even more in most other
countries in the world where fuel cost is higher!
Mach 3 SEFS-HD has also been proven to reduce NOx emissions by 44%,
CO emissions by 33% and HC emission by 7%. SEFS-HD also significantly
reduces particulate emissions. This can allow vehicles that were
previously unable to meet emissions standards to pass emissions
testing. While SEFS-HD has been proven to significantly reduce vehicle
emissions, it cannot replace proper maintenance and repairs.
MSRP (for Australia, Hong Kong, Japan, Macau and New Zealand (Category-B):
1/2 gal bottle (64 fl oz or 1.92 L) to blend 1,000 gal (3,840 L) of fuel:$169.50
5 L bottle (1.33 gal or 169 fl oz) to blend 2,650 gal (10,000 L) of fuel:$433.00
20 L pail (5.28 gal or 676 fl oz) to blend 10,540 gal (40,000 L) of fuel:$1,643.00
000 X xxxx (00.00 xxx) to blend 110,770 gal (420,000 L) of fuel:$16,688.00
SCHEDULE B
C) MACH 3 HEAVY DUTY SUPER ECOFUEL SAVER (SEFS-HD) DESCRIPTION AND CATEGORY-C
PRICING (for Austria, Belgium, Finland, France, Germany, Luxembourg,
the Netherlands and Ireland)
PRODUCT DESCRIPTION:
MACH 3 SEFS-HD (US EPA Registration #1927-0002): Mach 3 SEFS-HD is
non-metallic, biodegradable and completely environmentally friendly. It
contains only compounds of carbon, oxygen and hydrogen. Mach 3 SEFS-HD has
been developed to break down the clusters of hydrocarbon molecular chains
to allow for cooler, longer, more uniform and more complete combustion.
MACH 3 SEFS-HD has been specially formulated for high performance gasoline
internal combustion engines, heavy duty diesel internal combustion engines,
turbines, locomotives, open combustion furnaces & boilers, power generating
and marine diesel engines.
1 oz (30 ml) of MACH 3 SEFS-HD blended with 15.6 gal (60 L) of diesel
(1:2,000 ratio) will produce lower emissions, more engine power, smoother
running and the potential for fuel consumption reductions in excess of 16%.
It will also help to remove carbon deposits for improved performance and
longer engine life. Mach 3 recommends an initial dosage of 2 oz (60 ml)
per 15.6 gal (60 L) of fuel (1: 1,000 ratio).
Independent testing from a United States Environmental Protection Agency
(EPA) recognized laboratory has shown an unprecedented 16% reduction in fuel
consumption in vehicles running on SEFS-HD treated fuel. Purchased at MSRP
and blended at the recommended rate, Mach 3 SEFS-HD will effectively reduce
your fuel cost by $0.757/gal ($0.200/L) at a cost of only $0.170/gal to
$0.191/gal ($0.0447/L to $0.0496/L) with fuel cost at $4.74/gal ($1.25/L)
or higher. Many vehicles have achieved even greater fuel savings of over
25%. Vehicle type, fuel type, mechanical condition, payload, atmospheric
conditions, road conditions and driving habits all have a profound effect
on mileage. The preceding mileage claims were achieved in real world and
testing protocol controlled driving conditions but do not represent a
guarantee of actual performance. Individual results may vary. In any case,
Mach 3 SEFS-HD at MSRP actually pays you in fuel savings at triple its cost
in the US and even more in most other countries in the world where fuel
cost is higher!
Mach 3 SEFS-HD has also been proven to reduce NOx emissions by 44%, CO
emissions by 33% and HC emission by 7%. SEFS-HD also significantly reduces
particulate emissions. This can allow vehicles that were previously unable
to meet emissions standards to pass emissions testing. While SEFS-HD has
been proven to significantly reduce vehicle emissions, it cannot replace
proper maintenance and repairs.
MSRP for Austria, Belgium, Finland, France, Germany, Ireland, Luxembourg
and Netherlands (Category-C):
1/2 gal bottle (64 fl oz or 1.92 L) to blend 1,000 gal (3,840 L) of fuel: $190.50
5 L bottle (1.33 gal or 169 fl oz) to blend 2,650 gal (10,000 L) of fuel: $487.00
20 L pail (5.28 gal or 676 fl oz) to blend 10,540 gal (40,000 L) of fuel: $1,849.00
210 L drum (55.48 gal) to blend 110,770 gal (420,000 L) of fuel: $18,775.00
SCHEDULE B
D) MACH 3 HEAVY DUTY SUPER ECOFUEL SAVER (SEFS- HD) DESCRIPTION AND
CATEGORY-D PRICING (for Denmark, Italy, Sweden and the United Kingdom)
PRODUCT DESCRIPTION:
MACH 3 SEFS-HD (US EPA Registration #1927-0002): Mach 3 SEFS-HD is
non-metallic, biodegradable and completely environmentally friendly. It
contains only compounds of carbon, oxygen and hydrogen. Mach 3 SEFS-HD has
been developed to break down the clusters of hydrocarbon molecular chains
to allow for cooler, longer, more uniform and more complete combustion.
MACH 3 SEFS-HD has been specially formulated for high performance gasoline
internal combustion engines, heavy duty diesel internal combustion engines,
turbines, locomotives, open combustion furnaces & boilers, power generating
and marine diesel engines.
1 oz (30 ml) of MACH 3 SEFS-HD blended with 15.6 gal (60 L) of diesel
(1:2,000 ratio) will produce lower emissions, more engine power, smoother
running and the potential for fuel consumption reductions in excess of 16%.
It will also help to remove carbon deposits for improved performance and
longer engine life. Mach 3 recommends an initial dosage of 2 oz (60 ml)
per 15.6 gal (60 L) of fuel (1: 1,000 ratio).
Independent testing from a United States Environmental Protection Agency
(EPA) recognized laboratory has shown an unprecedented 16% reduction in
fuel consumption in vehicles running on SEFS-HD treated fuel. Purchased
at MSRP and blended at the recommended rate, Mach 3 SEFS-HD will effectively
reduce your fuel cost by $0.757/gal ($0.240/L) at a cost of only $0.195/gal
to $0.219/gal ($0.0515/L to $0.0572/L) with fuel cost at $5.76/gal ($1.50/L)
or higher. Many vehicles have achieved even greater fuel savings of over 25%.
Vehicle type, fuel type, mechanical condition, payload, atmospheric
conditions, road conditions and driving habits all have a profound effect
on mileage. The preceding mileage claims were achieved in real world and
testing protocol controlled driving conditions but do not represent a
guarantee of actual performance. Individual results may vary. In any
case, Mach 3 SEFS-HD at MSRP actually pays you in fuel savings at
triple its cost in the US and even more in most other countries in the
world where fuel cost is higher!
Mach 3 SEFS-HD has also been proven to reduce NOx emissions by 44%, CO
emissions by 33% and HC emission by 7%. SEFS-HD also significantly
reduces particulate emissions. This can allow vehicles that were
previously unable to meet emissions standards to pass emissions testing.
While SEFS-HD has been proven to significantly reduce vehicle emissions,
it cannot replace proper maintenance and repairs.
MSRP for Denmark, Italy, Sweden and United Kingdom (Category-D):
1/2 gal bottle (64 fl oz or 1.92 L) to blend 1,000 gal (3,840 L) of fuel: $219.50
5 L bottle (1.33 gal or 169 fl oz) to blend 2,650 gal (10,000 L) of fuel: $561.00
20 L pail (5.28 gal or 676 fl oz) to blend 10,540 gal (40,000 L) of fuel: $2,128.60
210 L drum (55.48 gal) to blend 110,770 gal (420,000 L) of fuel: $21,616.00
