MANUFACTURING AGREEMENT
This manufacturing agreement ("Manufacturing Agreement") is made
Friday, January 21, 2000 by and between Asia Pacific Micro, Inc.
("APM"), having a place of business at 0000 Xxxxxxxx Xxxx., Xxxxx
X, Xxxxxxx, Xxxxxxxxxx, 00000 and eConnect, Inc. ("Purchaser")
having its principal place of business at 0000 Xxx Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000.
1. MANUFACTURING AND SALE: APM agrees to manufacture and sell to
Purchaser and Purchaser agrees to manufacture and purchase from
APM, at the Purchase Price set forth in Appendix "A," the
products ("Equipment") described in Appendix "A" attached hereto.
APM is to have the Equipment prepared for shipment on the
Delivery Date and at the Delivery Location, using standard
packing materials. All shipping, rigging, and installation costs
shall be paid by Purchaser from the manufacturer to the consumer.
2. DESCRIPTION OF EQUIPMENT: See Appendix "A" attached hereto.
3. PURCHASE PRICE: $ US DOLLARS.
4. DELIVERY DATE: On or before 3/31/00.
5. U.S. DELIVERY LOCATION: San Bruno, CA.
6. TERMS OF PAYMENT: NET 10, FOB Origin, Non-Cancelable PO,
Partials accepted.
Failure by Purchaser to pay any monies hereunder, when due, shall
result in a late charge, payable upon demand, calculated daily at
an interest rate of 1% per month (12% PER ANNUM) or if such rate
shall exceed the maximum rate of interest allowed by law, then at
such maximum rate. Unless otherwise specified herein, the
Purchase Price shall be due and payable on delivery of the
Equipment to the Purchaser.
7. RISK OF LOSS: The risk of loss or damage to the Equipment shall
be borne by the Purchaser after the Equipment is made available
for loading and delivery at APM's loading dock.
8. DELIVERY OF EQUIPMENT: The parties intend that the Equipment
shall be delivered at the Delivery Location on or about the
Delivery Date. APM warrants that the Equipment will be available
for delivery to the Purchaser no later than the Delivery Date set
forth above. APM agrees that if it shall fail to make delivery
on or before such date, then Purchaser shall have the right,
prior to APM tendering delivery to Purchaser, to elect to
terminate this Sales Agreement whereupon the Purchaser's sole and
exclusive remedy shall be the refund of all payments, which it
has paid to APM. Such election shall be in writing and effective
five days after receipt by APM. Notwithstanding the foregoing,
if APM is not able to deliver the Equipment by the Delivery Date
for reasons beyond APM's control, APM shall have an additional
ten days from Delivery Date to deliver the Equipment prior to
Purchaser terminating this Sales Agreement pursuant to this
Section 8.
9. TITLE AND SECURITY INTEREST: APM warrants and represents that it
has good title to the aforementioned Equipment, other than
software, free and clear of all liens and encumbrances of
whatever kind and description other than the interest of APM or,
in the case of new Equipment, Vendor. Title to the Equipment,
other than software, is to remain vested in APM until the
Purchase Price is paid in full. In addition Purchaser grants to
APM a purchase money security interest in the Equipment listed
herein the amount of the Purchase Price until paid and consents
to the filing and recording of the Sales Agreement in accordance
with the laws of any applicable jurisdiction prior to payment in
full of the Purchase Price. Purchaser will execute any other
financing documents in relation to the purchase of the Equipment,
which APM may reasonably request. All software is provided to
the Purchaser pursuant to a license agreement as set out in
Section 22 below, and in no event does purchaser acquire title to
or ownership of the software.
10. DELIVERY AND INSTALLATION AND INSURANCE COSTS, TAXES: The prices
shown above are F.O.B. the manufacturer's location. Purchaser
will pay installation and insurance costs, all delivery, rigging
and drayage charges. There has been or shall be added to the
prices shown above amounts equal to any taxes, however
designated, levied or based on such prices or on this Agreement
or the Equipment. If Purchaser is purchasing for resale, a duly
executed resale certificate shall be delivered to APM prior to
shipment of the Equipment, if requested by APM.
11. INDEMNITY: Purchaser hereby agrees to defend, indemnify and save
harmless APM and its agents and servants, officers and directors
from against any and all liabilities, obligations, losses,
damages, penalties, claims, costs, expenses, including legal
expenses, of any kind whatsoever, arising from or relating to the
manufacture, order, acceptance or rejection, purchase, ownership,
delivery, lease, possession, use, importation, installation,
condition, sale, return or other disposition of the Equipment,
including, without limitation, and costs or expenses incurred by
APM in the acquisition by APM of any Equipment the cost of which
is in excess of or is included in the acquisition cost indicated
in this Sales Agreement, and the claim relating to any latent or
other defects whether or not discoverable by Lessee, any claim in
tort for strict liability and any claim for patent, trademark,
design or copyright infringement. Each party agrees to give the
other party prompt notice of any matter hereby indemnified
against. These indemnities shall become effective from the date
of delivery of the Equipment, and shall continue in full force
and effect until payment of the Purchase Price in full.
12. MANUFACTURE: Purchaser acknowledges that APM is the agent of the
manufacturer. All product will be manufactured at Purchaser's
authorization.
13. APM'S RIGHT TO TERMINATE: In the event Purchaser refuses or is
unable to accept delivery of the Equipment, or fails to pay for
the Equipment when due, then APM shall have the right (a) to
immediately terminate this Sales Agreement on written notice to
the Purchase, (b) to immediate possession of the Equipment; (c)
to re-sell or lease the Equipment; and (d) to avail itself of any
legal remedy. In addition to any other right or remedy which it
may have at law or in equity, APM shall be entitled to retain all
monies paid hereunder as liquidated damages, not as a penalty.
APM agrees to remit to Purchaser any monies collected by APM in
excess of (i) the Purchase Price referred to above, and (ii) all
costs and expenses resulting from Purchaser's default, provided
such remittance shall not exceed the amount paid by Purchaser as
liquidated damages under this paragraph 15.
14. FORCE MAJEURE: If APM is unable to deliver the Equipment due to
an act of God or other cause beyond the control of APM, APM shall
not be liable for such failure during the period and the to the
extent of the disability. If the disability prevents or
interferes with the shipment of the Equipment by the carrier
which APM would or ordinarily used, shipment shall not be made by
a more costly carrier unless Purchaser advises APM that it will
assume the additional costs.
15. ASSIGNMENT: This Sales Agreement shall be binding upon an inure
to the benefit of the parties and their respective successors and
assigns except that the Purchaser may not assign its rights or
obligations without prior written consent of APM which consent
shall not be unreasonably withheld.
16. NOTICES: Any notices from either party shall be given to the
other in writing to the address shown above, or to such other
address as may be designated in writing by such party to the
other and shall be deemed to have been received when delivered,
or two business days after deposit in the post office, postage
prepaid, whichever shall occur first.
17. APPLICABLE LAW: The laws of the United Sates of America and the
State of California shall govern this Sales Agreement. This
Sales Agreement constitutes the entire Agreement between the
Purchaser and APM with respect to the purchase and sale of the
Equipment listed above and no statement not contained in this
Agreement shall be binding upon APM as a warranty or otherwise.
The foregoing terms and conditions shall prevail notwithstanding
any variance with the terms and conditions of any order submitted
by the Purchaser in respect of the Equipment.
18. AGREEMENT BINDING: This Sales Agreement is not binding upon APM
until accepted by the signature of a corporate officer at its
head office.
19. LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES: APM SHALL
HAVE NO LIABILITY TO PURCHASER FOR ANY CLAIM, LOSS OR DAMAGE
CAUSED OR ALLEGED TO BE CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY
OR CONSEQUENTIALLY BY THE EQUIPMENT, BY ANY INADEQUACY THEREOF OR
DEFICIENCY OR DEFECT THEREIN, BY ANY INCIDENT WHATSOEVER IN
CONNECTION THEREWITH, ARISING IN STRICT LIABILITY, NEGLIGENCE OR
OTHERWISE. EXCEPT AS CONTAINED HEREIN, APM MAKES NO EXPRESS OR
IMPLIED WARRANTIES OF ANY KIND, INCLUDING THOSE OF MERCHANT
ABILTITY, DURABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE
WITH THE RESPECT TO THE EQUIPMENT, OR PATENT, TRADEMARK, AND
COPYRIGHT INFRINGEMENT AND EXPRESSLY DISCLAIMS THE SAME. IF ANY
EQUIPMENT OR ANY PART THEREOF IS NEW EQUIPMENT, PURCHASER
ACKNOWLEDGES RECEIPT OF PRODUCT WARRANTY INFORMATION PROVIDED BY
THE MANUFACTURER. PURCHASER FURTHER ACKNOWLEDGES THAT ITS SOLE
REMEDY FOR THE BREACH OF ANY SUCH WARRANTY SHALL BE AGAINST THE
MANUFACTURER AND NOT AGAINST APM AND THAT ANY SUCH BREACH SHALL
NOT AFFECT THE OBLIGATIONS OF THE PURCHASER TO APM HEREUNDER.
ACCEPTED BY APM: ACCEPTED BY PURCHASER:
APM eCONNECT
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxx
Xxxxxxx Xxxx, President Xxxxxx X. Xxxxxx, President
APPENDIX "A"
All Research, Development and Design is paid for by eConnect,
Inc. A working prototype to be finalized in mid February 2000.
Procurement of the build components and production can start
immediately after final visual and written approval from
eConnect.
Qty. Mfg. Equipment/Description Unit Price Extended
5,000 China Desktop Card Reader $16 $80,000*
1 R & D Design To Be Determined/Actual Cost
Research, Development and Design cost will be billed at actual
cost not to exceed, $5,000 USD.
Pricing is variable, plus or minus 25% depending on cost of
manufacturing. Final pricing will be determined before
manufacturing begins.
Manufacturing capacity of factory is 300,000 units per annum.
Additional factories can be contracted as needed.
SUB-TOTAL $80,000 + R&D
SHIPPING & HANDLING $ Actual
TOTAL $80,000
25% Deposit Due upon Final Approval, before production begins.
Balance Due Net 10 upon deliver in US.
