EXHIBIT 10.8
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Puradyn Filter Technologies Incorporated
MASTER DISTRIBUTORSHIP AGREEMENT
International
This Master Distributor Agreement ("Agreement"), is made and effective this 18th
of February, 2008, by and between Puradyn Filter Technologies, Incorporated
("PFTI") or ("The Company"), whose principal address is at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Filter Solutions Ltd (FSL) (hereinafter referred to
as "Master Distributor") having Principal offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
WHEREAS:
A. The Manufacturer is in the business of designing, developing,
manufacturing and marketing bypass oil refiners and filters under
the trademark "puraDYN(R)" hereinafter referred to as the "PRODUCT".
B. The Manufacturer is the exclusive licensee of Patents No. 5,591,330
5,639,965 5,630,912 5,718,258 6,139,725 and pending patent
applications.
C. The Manufacturer has the right to grant to the Master Distributor
the right to purchase and sell the product in the Service Territory
(as defined herein);
D. The Master Distributor warrants that it is now solvent and capable
of acting as a Master Distributor within the Service territory; and
E. The Master Distributor is desirous of purchasing and selling the
Product in The Service Territory, and the Manufacturer is desirous
of granting the Master Distributor, the right to do so upon the
following terms and conditions; in consideration of the mutual
promises and understandings set forth below, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
PFTI desires to appoint Master Distributor, and Master Distributor desires to
accept appointment as, a exclusive Master Distributor of PFTI's product as set
forth herein.
The parties agree as follows:
1. Rights Granted and Appointment
A. PFTI hereby grants to Master Distributor an Exclusive RIGHT on the
terms and conditions contained below to purchase inventory, promote
and resell "PFTI Products" (as defined below) in United Kingdom,
Mainland Europe and Ireland plus additional international
territories on a case-by-case basis to (i) end-users with fleets of
vehicles; (ii) users of hydraulic applications for manufacturing
processes; and (iii) Distributors who market to end-users with
fleets of vehicles and/or users of hydraulic applications for
manufacturing processes (those persons identified in paragraph 1,B
(i), (ii) and (iii) shall be collectively referred to as "Customers"
and individually as a "Customer), subject to the terms and
conditions set forth and stated in this Agreement and its attached
exhibits. The Master Distributor hereby accepts such appointment and
agrees to use its best efforts in the performance of such duties
hereunder.
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B. Manufacturer agrees to forward all inquiries for sales and/or Master
Distributors to the Master Distributor no matter what industry or
market segment inquiry originate. Master Distributor will have ten
(10) working days to respond to Manufacturer in regards to how
inquiry will be handled. In the event that inquiry has not been
adequately satisfied and Manufacturer receives third contact from
said inquirer, Manufacturer will notify in writing the Master
Distributor that the Manufacturer will handle the inquiry.
C. The Manufacturer reserves the right to sell the Product directly to
any U.S. Manufacturer of engines, vehicles, and other machinery as
original equipment (hereinafter referred to as "OEM"). The OEM has
the right to sell the Product through its dealer network.
D. Master Distributors activities shall include, but not be limited to,
building sales volume to existing accounts, identifying and
developing new accounts, diligently promoting new products and/or
services to Customers, identified by Master Distributor, providing
any and all services necessary for the support of Customers in their
channels of distribution, effectively communicate to Manufacturer
all relevant information on the market, competition and Customers
that could in any way impact Manufacturer's business, and monitor
the creditworthiness of Customers in the Territory.
E. Master Distributor shall not sell or deliver the Products outside
the territory or to individuals it knows will transport the Products
outside the Territory without first receiving written consent from
one of Manufacturer's Officers. In addition, Master Distributor
shall not, directly or indirectly engage in any of the following
activities outside the Territory without, the prior written consent
of Manufacturer in each case: advertise the Products; maintain
warehouses for the Products; or seek Orders or engage in any other
kind of sales promotion for the Products.
F. The Master Distributor shall not sell, offer for sale, or act as
sales agent for the solicitation of Orders for any products which
are competitive with any of the Products without first receiving
written authorization from Manufacturer.
G. Installation must be performed and completed by a properly trained
and authorized representative of the Company or Master Distributor.
2. Products
As used in this Agreement, the term "PFTI's Products" shall mean the
products, related service parts and accessories manufactured and/or sold
by PFTI as outlined in the PFTI price list, a copy of the most recent of
which is attached.
3. Term of Agreement
This Master Distributor contract will have duration of five (5) years from
the signing date provided Master Distributor has fulfilled his obligations
hereunder. The contact will renew automatically, negotiated with minimum
quantities, for an additional twelve (12) months on each anniversary date.
This contract may be cancelled by either party with 30 days' written
notice.
4. Minimum Annual Purchases
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The parties agree that the Master Distributor shall purchase from the
Manufacturer not less than US $600,000 through December 2008 from date of
this contract and to be allocated approximately US$200,000 per quarter,
beginning March 1, 2008. (As an example, if Master Distributor were to
purchase US$ 250,000 in 2nd Quarter and US$ 250,000 during the 3rd
Quarter, 4th Quarter purchases would have to be only US$ 100,000 to comply
with Agreement.) (Reference Exhibit 1 for quarterly purchase
requirements.)
A. Master Distributor agrees to sell US $600,000 of Product during the
first 9 months beginning March 1, 2008.
B. After the first 9 months, Master Distributor agrees to a minimum
fifteen percent (15%) increase over the previous 12 months annual
rata (of $800,000). This fifteen percent (15%) increase will apply
to each successive 12 month calendar period:
2nd year $ 920,000 U.S. Dollars
3rd year $1,058,000 U.S. Dollars
5. Price and Terms of Sale
A. Price of Products. Master Distributor shall purchase the Product at
the prices set forth on the Price Schedule attached as Exhibit 2
(the "Price Schedule"). The Price Schedule does not include Master
Distributor taxes, duties, licenses, excises and tariffs, which
shall be paid by the Master Distributor.
B. Change in price of Products. Manufacturer may, from time to time,
change the Price Schedule in its sole discretion after providing
Master Distributor with sixty (60) days written notice of such
change.
C. Payments Free of Taxes, Withholding, etc. Master Distributor shall
pay any and all taxes and any other surcharges, fees, licenses and
other amounts charged or payable in connection with the importation
of the Products into, and the sale of Products within, the
Territory.
D. Payment Terms. The Master Distributor shall pay for the Product by
wire transfer the purchase price prior to Manufacturer making the
shipment available to Master Distributor EXW Manufacturer's shipping
dock, Boynton Beach, Florida, or by Letter of Credit initially at 30
days after shipment and at some later period, 7 days after shipment.
E. Carrier. The Carrier will be selected and shipment scheduled by
PFTI, unless Master Distributor requests a reasonable alternative
which does not negatively affect or delay shipment.
6. Order Processing, Returns and Repurchase Option
A. PFTI will employ its best efforts to fill Master Distributor's
orders promptly on acceptance, but reserves the right to allot
available inventories among Master Distributors at its discretion.
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B. PFTI will accept returns of products that are defective at the time
of sale to Master Distributor or prove defective during the warranty
period. PFTI will also allow Master Distributor to return salable
goods to The Company, but only within the policy established for
returned goods, shown below.
7. Financial Policies
Master Distributor acknowledges the importance to PFTI of Master
Distributor's sound financial operation and Master Distributor expressly
agrees that it will:
A. Maintain and employ in connection with Master Distributor's business
and operations under this Agreement such working capital and net
worth as may be required to enable Master Distributor properly and
fully to carry out and perform all of Master Distributor's duties,
obligations and responsibilities under this Agreement;
B. Pay promptly all amounts due PFTI in accordance with terms of sale
extended by PFTI; and
Furnish PFTI with financial information and references in such form
as PFTI may reasonably require from time-to-time for determination
of credit worthiness.
Shipments and contract may be suspended at PFTI's discretion in the event
that Master Distributor fails to promptly and faithfully discharge any
obligation in this Section.
8. Use of PFTI's Name
Master Distributor will not use, authorize or permit the use of, the name
"Puradyn Filter Technologies Incorporated" or derivatives, or any other
trademark or trade name owned by PFTI as part of its firm, corporate or
business name in any way. Master Distributor shall not contest the right
of PFTI to exclusive use of any trademark or trade name used or claimed by
PFTI. Master Distributor may, subject to PFTI's written approval of same,
utilize PFTI's name, trademarks or logos in advertising on stationery,
business cards and signage.
9. Termination
A. Termination after Notice. This agreement may be terminated by either
party in the event of a breach by the other party (or any of its
Officers or Principals joining this agreement) of any of its
obligations under this Agreement (other than those obligations set
forth in paragraphs 9.C and 9.D, below, which may result in earlier
termination) which has not been corrected by the breaching party
within a period of thirty (30) days from the date on which written
notice of termination is given. In such event, termination shall be
effected by written notice of termination to the breaching party.
Termination on such grounds shall not preclude the terminating party
from taking recourse to any legal action or remedy to which it might
be entitled.
B. Immediate Termination without Notice. This agreement shall be deemed
terminated immediately without notice upon the occurrence of any of
the following events:
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1. An assignment of all or a substantial portion of the
assets of the Master Distributor for the benefit of
creditors;
2. The insolvency of Master Distributor (as defined in the
Uniform Commercial Code);
3. The filing of a voluntary petition in bankruptcy by or
against the other party;
4. The filing of any attachment, distraint, levy,
execution, or judgment against Master Distributor, the
filing of an involuntary petition under the provisions
of the U.S. Bankruptcy Act, or similar act under the
Master Distributor's local laws as amended, or any
applications for the appointment of a receiver for
Master Distributor's property, the filing of which
remains unsatisfied and undischarged after the end of
thirty (30) days after the occurrence of such event;
5. The filing of a petition for bankruptcy, receivership,
suspension or payments or dissolution by or against the
other party or any equivalent thereof under the national
law of that party, which petition is not discharged
within thirty (30) days thereafter.
C. Immediate Termination By Either Party With Notice. This Agreement
may be terminated with immediate effect by either party by written
notice in the event of:
1. The occurrence of a "Force Majeure" as defined in
paragraph 17.A hereof; and
2. Any representation made or furnished by the other party
or any of its Officers or Principals who have joined in
the execution of this Agreement being false or
misleading in any material respect at the time it was
made.
D. Immediate Termination by Manufacturer. Moreover, this Agreement may
be terminated by Manufacturer with immediate effect by written
notice to Master Distributor in the event that:
1. Master Distributor is acquired by or becomes affiliated
with a company which is or may potentially become a
competitor of the Manufacturer or any of the
Manufacturer's affiliates;
2. A change occurs of more than fifty percent (50%) or more
in the direct or indirect voting control of Master
Distributor;
3. Master Distributor's failure to meet any Budget set
forth for any period listed in Exhibit 1, hereof;
4. Master Distributor's assignment, transfer, or attempted
assignment or transfer, of the rights and privileges
granted hereunder without the prior written consent of
the Manufacturer;
5. Master Distributor fails to make timely payment to
Manufacturer for amounts owed hereunder in accordance
with the terms herein.
10. Relationship of the Parties
A. The relationship of the Master Distributor to the Manufacturer shall
be that of an independent contractor. This Agreement does not in any
way create the relationship of joint venture partnership, franchiser
and franchisee or principal and agent between the Manufacturer and
the Master Distributor, and it is not contemplated that the
Manufacturer will render significant assistance or guidance to the
Master Distributor in the management, promotion or operation of the
Master Distributor's business.
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B. At the expiration of the Term, this Agreement automatically
terminates and no further relationship between Master Distributor
and the Manufacturer will exist, and no further commission
whatsoever are due to Master Distributor for any sales made by the
Manufacturer to any other entity, whether Master Distributor dealt
with the entity or not, after expiration or termination of this
Agreement, except such amounts as have accrued and or due and owing
to the Master Distributor for sales made in the Master Distributor's
Service territory as of the date of termination.
C. Master Distributor agrees that it will:
1. Not act in any way that would give the impression that
it has the power or authority to bind the Manufacturer
in any respect whatsoever.
2. Not make any representation (oral or written) that
varies from the specifications, operating instructions
or representations given to Master Distributor or made
by the manufacturer with respect to the Products,
including warranties.
3. Maintain a place of business in the Service Territory
and employ sufficient personnel to carry out Master
Distributor's obligations under this Agreement.
4. Comply with all applicable United Kingdom and applicable
international territory, federal, province, state and
local laws, rules, regulations, ordinances, and orders
in the solicitation of orders for the Products, and in
its other activities.
5. Master Distributor shall ensure that each installer
chosen by Master Distributor (and/or Master Distributor,
if applicable) to install the Products carries a
commercial general liability insurance policy, with a
reputable insurance company, subject to Manufacturer's
reasonable approval, that is compliant with and
effective under the laws of the Territory (including any
laws of any province, state or locality within the
Territory), which policy shall insure against any and
all liability due to improper installation. Such policy
shall have a face amount of not less than $1,000,000.00.
Master Distributor shall ensure that Manufacturer is
named as an "additional insured" under the policy.
6. Send a progress report to the Manufacturer on each
six-month anniversary of the contract indicating the
condition and the progress of the Service Territory.
7. Acknowledge that the manufacturer has the right at any
time to change the design of, discontinue, or limit the
manufacture or provision of any of the Products, or,
upon not less than thirty (30) days prior written notice
to Master Distributor to change the price thereof or to
withdraw from the market entirely.
8. Acknowledge that if the Master Distributor sells
controlling interest of Master Distributorship (defined
as 50.1% of the voting share capital or more), it must
first be approved by the Manufacturer, and may be
subject to immediate termination by Manufacturer in
accordance with section 9.D.2 (above). Every year the
Master Distributor shall inform the Manufacturer of any
stockholder changes.
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9. Not file any (other) trademark applications, or
otherwise seek intellectual property rights in or for,
any other trademark or trade name of PFTI, and agrees
that PFTI has the right to an injunction (as well as any
other relief available) if this provision is violated.
10. Use Manufacturer's or its subsidiaries' or affiliates'
trademarks "PURADYN"; "KEEP IT CLEAN") only in
accordance with established guidelines and not use such
trademarks in any manner that would convey the
impression that Master Distributor is selling Products
or acting on behalf of the Manufacturer.
11. Not use or disclose any Trade Secrets (information
concerning Manufacturer's marketing and business plans,
sales strategies, advertising programs, pricing, costs,
customers, technology or manufacturing methods) and will
make every effort to take reasonable precautions to
prevent any such disclosure by its employees.
12. Appoint sub-representatives (agents, sub-Master
Distributors or dealers) which meet all criteria of this
agreement, but will receive Manufacturer's prior written
approval for all sub-representatives which do not meet
all criteria.
13. Not make any representations about the Product other
than those contained in written information and data
supplied by the Manufacturer and ▇▇▇▇ be responsible for
all representations.
14. Provide at its cost any language translations of all
commercial communications, such as quotations,
proposals, conditions, catalogues and other promotional
materials, and will indemnify and hold harmless
Manufacturer as a result of incorrect or incomplete
translations.
15. Pay all expenses incurred by Master Distributor and its
employees in the performance of its obligations under
this agreement.
16. Promptly inform Manufacturer if it knows or suspects
that customers or prospective customers intend to
re-export Products outside the territory, and will not
assist same without prior written permission from
Manufacturer.
17. Be responsible for Product installation, customer
training and customer service, including but not limited
to post-warranty service and/or repair.
18. Comply with all governmental requirements, statutes and
laws, and will notify Manufacturer of any conflict
between its national laws and any provision of this
agreement.
19. Not directly or indirectly make any offer or promise to
improperly influence an agent, government official,
political party or candidate for office in order to
obtain or retain business or gain inappropriate
advantage.
20. Forward to manufacturer any complaint or grievance with
respect to products immediately upon receiving the
complaint.
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21. Distribute and sell Products in the Territory through
its own sales organization.
22. Use its best efforts to promote and increase sales of
the Products in its Territory and protect Manufacturer's
interests in the Territory.
23. Maintain an inventory of all Products adequate to meet
the needs of the market in the Territory for a period of
ninety (90) days.
24. Maintain a spare parts inventory sufficient to meet
demand on a timely basis.
25. Not deface, alter, improve or otherwise make any changes
to the product.
26. Properly train installers of the Product and participate
in one or more training sessions given by the
Manufacturer at its facilities (or off-site with all
expenses incurred by Manufacturer repaid by Master
Distributor) and will pay for all expenses incurred by
the Master Distributor for this training.
27. The Master Distributor shall not manufacture and/or
cause to be manufactured and/or purchase and/or
distribute and/or sell and/or commercialize during the
term of this Agreement, and for a period of ninety (90)
days following termination or cancellation of this
Agreement products which in the judgment of the
Manufacturer are similar in performance to or
competitive with the Manufacturer's Products from any
source other than the Manufacturer.
28. Manufacturer agrees during the term of the Agreement to
permit the Master Distributor to use the Manufacturer's
trademarks and trade names in the Master Distributor's
sales program for the sole purpose of advertising and
promoting the sale of the product. Master Distributor
agrees not to use or cause the use of the Manufacturer's
trademarks or trade names in any manner which shall
directly or indirectly tend to lessen their value.
11. Advertising and Marketing Allowances
A. The Master Distributor will assume full responsibility for
developing all promotional material including, but not limited to
brochures, flyers, and advertisements. The Master Distributor agrees
to dedicate a reasonable amount of gross purchases annually of the
product to funding the development of these promotional materials.
The Manufacturer agrees to provide any artwork not restricted by
licensee to support Master Distributor's promotional material
development.
B. Any printed advertising and promotional material created by the
Master Distributor referring to the Product shall be sent to the
Manufacturer for approval prior to any use, and the Manufacturer may
disapprove within ten (10) days by fax, the use of any material
which, in the Manufacturer's opinion, misrepresents the Product or
which might mislead Customers.
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C. Master Distributor agrees to conduct its promotion, advertising,
sales, pricing and business generally at all times in strict
compliance with all applicable Master Distributor federal, state
and local laws and regulations.
Master Distributor with a functioning website will be required to link that site
with the Puradyn website (▇▇▇.▇▇▇▇▇▇▇.▇▇▇) within 30 days of signing the Master
Distributor Agreement. Puradyn will link to Master Distributor's site within 10
days of signing Master Distributor Agreement. If the Master Distributor
Agreement is terminated, the links must be removed within 5 days.
12. Returns
Subject to PFTI headquarters approval, Master Distributor may return twice a
year, for credit against future purchase of PFTI product, an amount of PFTI
product (filter cases and units only) not to exceed 5% of the Master
Distributors net purchases during the preceding six (6) months. Returns are
subject to the following conditions:
A. Approval by PFTI headquarters.
B. Shipped pre-paid to PFTI.
C. Product in salable condition, subject to PFTI inspection before
acceptance, and subject to a 20% restocking charge.
D. Credits for returns will be issued at the Master Distributor price
in effect at the time the Product was purchased.
13. Special Orders
Emergency orders [shipped within 7 (seven) working days] are subject to a ten
(10) percent up charge.
14. Product Liability and Limitation of Warranty
A. Manufacturer's Responsibility. Manufacturer shall be responsible
only for damages caused by manufacturing defects of the Products
arising in the ordinary use of the Products. Manufacturer shall not
be liable for damages caused directly or indirectly by Master
Distributor or third parties as a result of the handling or storage
of the Products (and Master Distributor shall indemnify Manufacturer
and its shareholders, directors, officers, employees and agents, and
their respective successors and assigns, from and against any
damages, liabilities, claims, losses, suits, actions, costs and
expenses to Manufacturer so caused), or of their inadequate or
improper use. Manufacturer shall provide a limited warranty of one
(1) year on the units, including heater (Exhibit 3.) An extended
four-year warranty is available for puraDYN units. Please contact
Puradyn Filter Technologies, Inc. for additional information.
B. Limitation of Liability. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND
IN LIEU OF ALL OTHER EXPRESSED AND IMPLIED WARRANTIES WHATSOEVER,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES SHALL
THE MANUFACTURER BE SUBJECT TO ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT OR CONTINGENT DAMAGES WHATSOEVER WITH RESPECT TO CLAIMS
MADE HEREUNDER OR BY ANY PURCHASER OR USER OF PRODUCTS.
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C. Product Liability and Limitation of Warranty. Master Distributor at
its own cost and expense shall maintain a standard form of insurance
insuring all goods and merchandise sold by the Manufacturer to the
Master Distributor for all risks to their invoice value, while all
the goods and merchandise are in the possession, care and custody,
or control of the Master Distributor or in which Master Distributor
may have an interest.
15. Consequences of Termination.
A. Cessation of Sales Activities. Upon termination of this Agreement
for any reason whatsoever, Master Distributor shall cease the sale
of the Products and use of the Trademarks in the Territory,
including but not limited to any use of the Trademarks for
advertising purposes, and make immediate payment to Manufacturer of
any and all amounts due Manufacturer. Subject to Manufacturer's
right of repurchase in paragraph 15.B below, upon termination of
this Agreement. Master Distributor shall be authorized to sell its
then-existing stock of the Products at normal prices and otherwise
in accordance with the Agreement, during the three (3) months
following the effective date of termination, and shall thereupon
cease any use of the Trademarks. Any or all Orders not accepted by
the Manufacturer on or before the date of termination shall, at the
Manufacturer's sole option, be canceled. Master Distributor shall
forthwith return, at its own cost and expense, to the Manufacturer
all promotional sales information materials and literature,
stationery, price lists, catalogues, photographs, letters and papers
that shall have been furnished by the Manufacturer to Master
Distributor during the term of this Agreement, it being understood
that no copies of these foregoing materials may be retained by
Master Distributor subsequent to the date of termination or
expiration of this Agreement. Master Distributor shall provide to
Manufacturer all documentation identifying the names, addresses,
telephone numbers and contact individuals of customers of Master
Distributor who bought Products or were solicited by Master
Distributor. Master Distributor shall also remove and return to
Manufacturer, or in the alternative remove and destroy, any and all
signs designating Master Distributor as a Master Distributor for the
Products, any and all signs which include any trademarks or trade
names of Manufacturer and any and all signs which associate Master
Distributor with Manufacturer.
B. No Damages and Repurchase Option. Master Distributor acknowledges
and expressly agrees that upon termination or expiration of this
Agreement for any reason whatsoever, the Manufacturer shall not be
liable to Master Distributor and Master Distributor hereby waives
any claims for compensation or damages of any kind or character
whatsoever, whether on account of the loss by Master Distributor of
present or prospective compensation or anticipated compensation, or
of expenditures, investments or commitments made either in
connection therewith or in connection with the establishment,
development or maintenance of establishment, development or
maintenance of Master Distributor's business. The Manufacturer shall
have no obligation to repurchase or to credit the Master Distributor
for its inventory of the Products at the time of termination of this
Agreement. The Manufacturer may, at its sole option, repurchase from
the Master Distributor, either (i) at Manufacturer's then current
list prices or at the net prices paid by the Master Distributor,
whichever is lower, and less any and all restocking and freight
charges relating thereto, or (ii) by giving Master Distributor a
credit on its account(s) with Manufacturer (valued as in (i) above),
at Manufacturer's sole discretion, any or all of the inventory of
Products originally purchased by the Master Distributor from the
Manufacturer and in new and marketable condition. Any restocking
charge shall not exceed twenty (20) percent of the repurchase price.
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16. Indemnification.
A. By Master Distributor. The Master Distributor agrees to indemnify
and hold harmless Manufacturer and its shareholders, officers,
directors, employees and agents, and their respective successors and
assigns, from and against all damages, liabilities, claims, losses,
suits, actions, costs and expenses of whatever form or nature,
including legal/attorneys' fees and other costs of legal defense,
whether direct or indirect, that they, or any of them, may sustain
or incur as a result of any acts or omissions of the Master
Distributor or any of its directors, officers, employees or agents,
including, but not limited to, (1) breach of any of the provisions
of this Agreement, (2) negligence or other tortious conduct, (3)
representations or statements not specifically authorized by
Manufacturer herein or otherwise in writing or (4) violation by the
Master Distributor (or any of its owners, Directors, Officers,
employees or agents) of any applicable law, regulation, or order in
the Territory or of the United States.
B. By Manufacturer. Manufacturer agrees to indemnify and hold harmless
the Master Distributor and its owners, officers, directors,
employees and agents, and their respective successors and assigns,
from and against all damages, liabilities, claims, losses, suits,
actions, costs and expenses of whatever form or nature, including
attorneys' fees and other costs of legal defense, whether direct or
indirect, that they, or any of them, may sustain or incur as a
result of any (1) breach of any of the provisions of this Agreement
by Manufacturer or (2) negligence or other tortious conduct of
Manufacturer.
17. Other Provisions
A. Force Majeure. If the performance of this Agreement or of any
obligation hereunder is prevented by reason of any cause beyond the
reasonable control of the affected party, which reasons shall
include but not be limited to fire, floods, acts of G-d, civil
revolution or disturbance, strikes, lockouts, epidemics or
governmental measures, the party so affected, upon prompt notice to
the other party, shall be excused from such performance to the
extent of such prevention, restriction or interference, provided
that the party so affected shall use its best efforts to avoid or
remove such cause(s) of nonperformance and shall continue
performance hereunder with the utmost dispatch whenever such
cause(s) is/are removed. In the event that either party is prevented
from performing its obligations hereunder by reason of force majeure
for a continuous period of more than thirty days, then either party
may forthwith terminate this Agreement.
B. Assignment. This Agreement may not be assigned by either party
except with the prior written consent of the other party, with the
exception that:
1. Master Distributor shall not assign, delegate or
otherwise transfer its rights under this Agreement.
Notwithstanding such assignment, Master Distributor may
retain or utilize agents or sub-Master Distributors in
the sale of Products, without the prior written consent
of Manufacturer; and
2. Manufacturer may assign this Agreement in connection
with the sale of its business, whether such sale takes
the form of a sale of assets, a sale of capital stock, a
merger, or otherwise.
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Subject to the foregoing, this Agreement shall inure to the benefit of and
be binding upon, the parties and their respective successors and assigns.
C. Independent Contractors. This Agreement is not an employment
contract nor joint venture or partnership agreement between
Manufacturer and Master Distributor. The relationship between the
parties is that of vendor and purchaser and not principal and agent
and, accordingly, any purchase of or sale of Products by Master
Distributor or any agreement or commitment made by Master
Distributor to any person, firm or corporation with respect hereto
is made by Master Distributor for its own account as principal.
Master Distributor is an independent contractor purchasing Products
for its own account and is not obliged to account to Manufacturer
for any profits earned by it on sales. Master Distributor shall have
no right or authority to execute any agreement or give any warranty
or statement in the name of or on behalf of Manufacturer.
D. Notices. Any notices required or authorized to be given hereunder,
except for routine and typical shipment of documentation shall be in
writing, in English, and shall be delivered by DHL or Federal
Express to the following respective addresses or to such other
addresses as the parties may hereinafter communicate to each other
in writing. Such notice shall be deemed given three (3) days from
the day delivered to DHL or Federal Express:
To Manufacturer: Puradyn Filter Technologies Incorporated
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Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
To Master Distributor and/or
any of its Officers or
Principals:
With a copy to: ________________________________________
________________________________________
________________________________________
Notwithstanding, nothing contained herein shall justify or excuse either
party's failure to give oral notice for purposes of informing the other
party of circumstances or events that require prompt notification, but
such oral notice shall not satisfy the requirements of written notice.
E. Entire Agreement; Amendments. This Agreement including the Exhibits
hereto incorporates the entire understanding of the parties in
respect of its subject matter, and supersedes any and all
agreements, contracts, undertakings or arrangements, written or
oral, that might have existed heretofore between the parties
regarding the subject matter hereof except any outstanding accounts
receivable owed to Manufacturer shall remain due and payable in
accordance with their terms. This Agreement may not be amended
except by means of a written instrument signed by both parties.
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F. Waivers. Any waiver by either party of any provision of this
Agreement or breach hereof shall not constitute a waiver of that
provision or that breach on any future occasion or of any other
provision or breach of this Agreement. Neither failure nor delay on
the part of a party to exercise any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any singular
or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. No understanding or course of
dealing between the parties shall be effective to change, modify or
discharge any provision of this Agreement or to constitute a waiver
of any breach.
G. Severability. In case any provision of this Agreement is held to be
prohibited by or invalid or unenforceable under applicable law by a
court of competent jurisdiction, the invalidity of such provision
shall not affect the validity of the remaining provisions hereof.
The parties agree to substitute any such prohibited or invalid
provision by another which shall lead to the economic result nearest
to the one which would have resulted under the provision held
invalid or prohibited.
H. Governing Law. To the extent permitted by the law of the Territory,
the validity, interpretation and enforcement of this Agreement and
all other instruments and documents executed in connection with this
transaction shall be governed by Florida law without regard to
conflicts of laws provisions. The parties agree that, to the extent
permitted by the law of the Territory, the exclusive venue for any
action brought under paragraph 17.K shall be Palm Beach County,
Florida, and the parties hereby attorn to the courts of the State of
Florida for such purpose. To the extent permitted by the law of the
Territory, the parties waive any other jurisdiction which may
correspond to them.
I. Interpretation and Rules of Construction. The headings and captions
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement. The parties acknowledge and agree that each party has
reviewed this Agreement with their respective counsels and that any
rule of construction resolving ambiguities against the drafting
party shall not be employed in the interpretation of this Agreement
or any amendment, Exhibit or schedule hereto. Whenever the context
shall require, all words herein in any gender shall be deemed to
include the other gender(s), all singular words shall include the
plural, and all plural words shall include the singular. This
Agreement is executed in English but may be translated to the
language of the Territory and both versions shall have the same
legal effect. However, if permitted by the laws of the Territory, in
case of any discrepancy between the texts, the English version shall
govern.
J. Arbitration. In the event that the parties fail to resolve their
dispute through the process of mediation then the suit shall be
finally settled under the Rules of Arbitration of the International
Chamber of Commerce by three (3) arbitrators appointed in accordance
with the said Rules. The language of arbitration shall be English.
The arbitration shall take place in Palm Beach County, Florida, USA.
The time limit within which the Arbitral Tribunal must render its
final award shall be four (4) months from the date of the initial
Request for Arbitration. The parties hereby agree to maintain as
confidential the existence of the arbitration and the disclosures
made during the proceedings. This confidentiality agreement shall
survive this Agreement, but in no manner shall this provision render
the enforcement of the arbitral award by any judicial branch or
court of law, a breach hereunder.
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K. Enforcement Of Restrictive Covenants. In the event that Manufacturer
seeks to enforce any of the covenants contained in paragraphs
10.C.11 and 10.C.27, the parties agree that Manufacturer may seek a
preliminary injunction in the courts of Florida or of the United
States for the Southern District of Florida, and by execution and
delivery of this Agreement, each party hereto consents, for itself
and in respect of its property, to the nonexclusive jurisdiction of
those courts. Each party hereto irrevocably waives any objection,
including any objection to the laying of venue or based on the
grounds of forum non conveniens, which it may now or hereafter have
to the bringing of any action or proceeding in such jurisdiction in
respect of this Agreement or any document related hereto.
L. Judgment Currency
1. If a judgment or order is rendered by any arbitration panel,
court or tribunal for the payment of any amounts owing to
Manufacturer under this Agreement or for the payment of
damages in respect of any breach of this Agreement or under or
in respect of a judgment or order of another court or tribunal
for the payment of such amounts or damages and such judgment
or order is expressed in a currency (the "Judgment Currency")
other than United States dollars, Master Distributor shall
indemnify and hold harmless Manufacturer against any
deficiency in terms of United States dollars in the amounts
received by Manufacturer arising or resulting from any
variation as between (i) the rate of exchange at which United
States dollars are converted into the Judgment Currency for
the purposes of such judgment or order, and (ii) the rate of
exchange at which Manufacturer is able to purchase the United
States dollars with the amount of the Judgment Currency
actually received by Manufacturer.
2. The above indemnity constitutes a separate and independent
obligation of the Master Distributor from its other
obligations hereunder and applies irrespective of any
indulgence granted by the Manufacturer. No proof of evidence
of any actual loss shall be required by Manufacturer.
3. The term "rate of exchange" shall include any premiums and
costs of exchange payable in connection with the purchase of
or conversion into the relevant currency.
4. The obligation of Master Distributor in respect of any sum due
from it to Manufacturer under this Agreement shall,
notwithstanding any judgment in a currency other than United
States dollars or otherwise, be discharged only to the extent
that on the business day following receipt by Manufacturer of
any sum adjudged to be so due in such other currency
Manufacturer may in accordance with normal business procedures
purchase United States dollars with such other currency. If
the United States dollars so purchased are less than the sum
originally due to Manufacturer in United States dollars,
Master Distributor agrees, to immediately indemnify
Manufacturer against such loss with interest at the highest
rate allowable by law until such payment is made, and if the
United States dollars so purchased exceed the sum originally
due to Manufacturer in United States dollars, Manufacturer
agrees to immediately remit to Master Distributor such excess.
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M. Brokerage. The parties each hereby represent and warrant to the
other that here is no party entitled to any broker's or finder's fee
or commission in connection with this Agreement or the transaction
contemplated hereby, and each party indemnifies the other and holds
such other party harmless from and against any and all claims for
any broker's or finder's fee or commission arising out of or based
on any act of the indemnifying party.
N. Specific Performance; Cumulative Remedies. The parties hereby agree
that it is impossible to measure in money the damages which will
accrue by reason of failure of a party to perform any of its
obligations under this Agreement. Therefore, if any party hereto,
its heirs, personal representatives, administrators, successors or
assigns shall institute any action or proceeding to enforce the
terms of this Agreement, the party against whom the action or
proceeding is brought hereby waives the claim or defense therein
that such party has an adequate remedy at law, and all parties agree
that the right of specific performance and/or injunctive relief
shall apply to the enforcement of all provisions set forth in this
Agreement. The right of specific performance and/or injunctive
relief shall be cumulative to and not exclusive of any other rights
or remedies of the party instituting suit.
O. Counterparts. This Agreement may be executed by telefacsimile and in
any number of counterparts, each of which shall be deemed an
original of this Agreement, but all of which together shall
constitute one and the same instrument.
P. Third Party Beneficiaries. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give
any person, firm or corporation other than the parties and
affiliates or subsidiaries referred to herein, their subsidiaries
and their heirs, personal representatives, successors,
administrators or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, or result in their
being deemed a third party beneficiary of this Agreement.
Q. Attorneys' Fees. In the event a suit or proceeding is brought by a
party to this Agreement to enforce its provisions, or to seek remedy
for any breach hereof, the prevailing party shall be entitled to
receive its reasonable attorneys' fees and disbursements incurred in
connection with such suit or proceeding, including fees and expenses
incurred in any appellate proceedings.
R. Expenses. Except as specifically provided herein, each party to this
Agreement shall pay its own expenses incident to this Agreement and
the transactions contemplated hereby.
S. Time. Time is of the essence as to the terms and provisions of this
Agreement.
T. General Provision. This Agreement specifically excludes the
provisions of the UN Convention on Contracts for the International
Sale of Goods.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
For Puradyn Filter Technologies Incorporated
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------- ------------------------------
Name (Print) Name (Sign)
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Vice Pres./CAO 561 547 9499
------------------------------------- ------------------------------
Title Phone
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-------------------------------------
Address
For Filter Solutions Ltd
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------------------------------------- -------------------------------
Name (Print) Name (Sign)
Principal DIRECTOR
-------------------------------------
Title
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---------------------------------------------------------------------
Address
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EXHIBIT 1
Sales Budget
Master Distributor shall purchase from Manufacturer and sell to Customers
in the Territory the following approximate amounts of Products:
During the period from March 1 through December 31, 2008: US$600,000 cumulative,
with a quarterly purchase of US$200,000.
During the period from January 1 through December 31, 2009: US$920,000
cumulative, with a quarterly purchase of US$230,000.
During the period from January 1 through December 31, 2010: US$1,058,000
cumulative, with a quarterly purchase of US$264,500.
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EXHIBIT 3
Puradyn Filter Technologies Incorporated
PRODUCT WARRANTY
puraDYN(R) Bypass Oil Filtration System
The puraDYN bypass oil filtration system is warranted to the original customer
to be free from defects in material and workmanship for a period of live (5)
years from the date of installation, with the exception of the heating element
which is warranted for one (1) year from the date of purchase, providing the
puraDYN is properly installed without any modifications or alterations pursuant
to the Puradyn Filter Technologies Incorporated, ("PFTI") installation manual.
PFTI products are eligible for this warranty only if registered with PFTI.
Submission of the PFTI warranty registration is required upon installation.
The puraDYN, including any defective part therein, must be returned to an
authorized sales representative, dealer, distributor, or to PFTI, within the
material and workmanship warranty period. The sales representative, dealer,
distributor or PFTI will then execute the warranty procedures on the owner's
behalf. PFTI's responsibility in respect to warranty claims is limited to
providing the required repairs or replacements to the product itself, and no
claim of breach of warranty shall be cause for cancellation or rescission of the
contract of sale of any PFTI products. Proof of purchase will be required to
substantiate any warranty claim.
PFTI shall repair the damage to any engine caused directly and solely during
said warranty period by the puraDYN provided that 1) the puraDYN is properly
installed and maintained in accordance with the prescribed installation
guidelines and service intervals contained in the PFTI installation manual; 2)
the puraDYN is installed and maintained on an engine which is in normal running
and mechanical condition at the time of installation and which continues to be
properly maintained in accordance with the engine manufacturer's recommended
service intervals (other than recommended oil changes); 3) the puraDYN is
installed on an engine in which the replacement engine oil meets or exceeds the
engine manufacturer's recommended grade of engine oil; 4) the proper puraDYN
filter elements and the engine's standard full-flow filter elements are
installed, used and replaced in accordance with the PFTI installation manual;
and 5) the oil analyses are performed by a qualified laboratory at the same
intervals you change the puraDYN filter element, but at least once a year.
Additionally, within five calendar days following the discovery of such damage,
the customer must give written notice to Puradyn Filter Technologies
Incorporated, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and allow a
service representative of PFTI to (a) examine the damaged engine on which the
puraDYN is installed; (b) examine the oil inside said damaged engine at the time
such damage is discovered; (c) examine the required periodic oil analysis
reports; and (d) examine the installation of the puraDYN at the time damage is
discovered in order to permit PFTI to determine the extent of damage and whether
it was caused solely and directly by the puraDYN In the event that without prior
consultation with PFTI, repair work or any other change to the damage is
executed, the right to warranty is invalidated and PFTI is not bound to pay any
compensation for damage. For other claims, including bodily injury based on the
deficiency of the puraDYN filter, the legal stipulations apply.
This warranty does not cover any economic loss, including without limitation,
communication expenses, towing mechanic's travel time and/or mileage, meals,
lodging, loss of use of the engine or equipment, loss of time, inconvenience,
cargo damage, overtime or any other cost or expense resulting from a defect
covered by this warranty. Repairs due to an accident, misuse, alteration,
misapplication, storage damage, negligence, modification exceeding puraDYN
specifications, or improper installation are not covered by this warranty. The
above-mentioned warranty and PFTI's liability will never extend beyond (the
consequence of) defects in the puraDYN systems themselves. Damage caused by
other means or by third parties, such as errors during installation or by
incorrect mounting of pieces of hoses, is not covered, either by this warranty
or by product liability.
This Warranty expires if and when.
a. The puraDYN systems are handled without due care or in contradiction
with the instructions for use, of if used for purposes other than
its appropriate purpose.
b. Cartridges other than the original puraDYN filter elements have been
applied.
c. The defect and/or damage is a result of a natural disaster,
accident, misuse, incorrect use or any other outside cause for which
PFTI is not liable.
PFTI reserves the right to change or improve the design of any PFT product
without assuming any obligation to modify any PFTI product previously
manufactured.
EXCEPT AS STATED ABOVE, PFTI SHALL NOT BE LIABLE IN CONTRACT, TORT, STRICT
LIABILITY OR NEGLIGENCE FOR ANY DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR
FOR BREACH OF ANY WRITTEN OR IMPLIED WARRANTY. PFTI NEITHER ASSUMES OPR
AUTHORIZED ANY OTHER PERSON TO ASSUME FOR PFTI ANY OTHER LIABILITY IN CONNECTION
WITH THE SALE OF THE PRODUCT. EXCEPT FOR THE EXPRESS WARRANTY STATED ABOVE AND
ANY WARRANTY IMPLIED BY LAW, THERE ARE NOT WARRANTIES EXPRESSED OR IMPLIED.
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