SUPPLY AGREEMENT
Supply Agreement (this "Agreement") dated as of November 16, 2004 between
Vision Bioenergy Australia Pty. Ltd., a Nevada corporation (the "Company"), and
SRW Nominees Pty. Ltd., an Australian company (the "Supplier"). SRW Nominees
Pty. Ltd. trades under name Big Ben Services.
WHEREAS, the Supplier supplies used and recycled vegetable oil to
manufacturers and distributors throughout Australia;
WHEREAS, the Company, through a subsidiary, will shortly commence the
production and distribution of biodiesel in Australia; and
WHEREAS, in connection with its production of biodiesel, the Company
desires to purchase from the Supplier, and the Supplier desires to sell to the
Company, low-free fatty acid recycled vegetable ("Oil"), on the terms and
conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the representations,
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Supplier agree as follows:
Section 1. Supply of Oil. The Supplier hereby agrees that upon receipt of
a purchase order from the Company indicating the requisite amount of Oil needed,
delivery instructions and any other information deemed appropriate, the Supplier
will ship to the Company the requested amount of Oil in accordance with the
terms of the purchase order. The Supplier agrees that the Company shall receive
most-favored nations pricing with respect to the purchase of each Oil shipment.
Section 2. Exclusivity. The Supplier agrees and acknowledges that during
the term of this Agreement, it shall not directly or indirectly provide Oil to
any other manufacturer, producer or distributor of biodiesel. The Supplier
represents and warrants that the execution and delivery of this Agreement, and
the performance by it of its obligations hereunder, will not (i) conflict with
or result in a violation of any provision of its Articles of Incorporation and
By-Laws or (ii) violate or conflict with, or result in a breach of any provision
of, or constitute a default (or any event which with the notice or lapse of time
or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement, to which
the Supplier is a party.
Section 3. Term. This Agreement shall commence on the date hereof and
terminate upon the prior written notice from the Company to the Supplier.
Section 4. Independent Contractor. Nothing contained in this Agreement and
the resulting relationship created between the parties shall, directly or
indirectly, constitute the Supplier as a partner, joint venturer, agent or
representative of the Company, the existence of which is hereby expressly denied
by both parties. Neither party shall be liable to any third party in any way for
any engagement, obligation, contract, representation or transaction, or for any
act or omission to act, of the other.
Section 5. Compliance with Laws; Taxes. Each party shall comply with all
laws, rules, ordinances, decrees, and regulations applicable to its activities.
The Supplier shall be strictly liable and indemnify the Company and its
officers, directors, stockholders, employees and agents for any costs, expenses,
injuries, and damages caused to any of the foregoing as a result of the
Supplier's failure to comply with any applicable laws, rules, ordinances,
decrees, and regulations.
Each party shall be responsible for and shall pay all taxes, duties,
assessments and charges, however designated, associated with the performance of
its duties hereunder which may now or hereafter be imposed by any governmental
authority or agency, including without limitation, sales, use, excise, import or
export value added or similar tax or duty, penalties and interest, as well as
any costs associated with the collection or withholding thereof, and all
government permit or license fees and all customs and similar fees levied that
each such party may incur with respect to the Agreement, and any costs
associated with the collection of any of the foregoing. The Supplier shall, on
the Company's account, assist the Company in filing all forms and documents with
the appropriate authorities as requested by the Company.
Section 6. Confidentiality. The Supplier shall hold all information it
receives from the Company which is non-public, proprietary or deemed
confidential by the Company (the "Confidential Information") in confidence. The
Supplier shall neither disclose the Confidential Information to any third party
nor use the same for any purpose other than as contained in the written consent
of the Company. The Supplier shall use the same degree of care as it uses to
protect its own confidential information, but no less than reasonable care, to
prevent the unauthorized use, dissemination or publication of the Confidential
Information. The Supplier will promptly advise the Company of any unauthorized
disclosure or use of the Confidential Information by any person. The Supplier
shall have the right to disclose the Confidential Information to its employees
and agents who need to know such information and who have executed and delivered
to the Company a written agreement containing terms and conditions substantially
similar to those stated herein.
The Supplier further agrees and acknowledges that in the event of a breach
or default or threatened breach or default by the Supplier of the provisions
contained in this Agreement, the damages to the Company may be impossible to
ascertain and the Company may not have an adequate remedy at law. In the event
of any such breach or default or threatened breach or default by the Supplier,
the Company shall be entitled to institute and prosecute proceedings in any
court of competent jurisdiction, either at law or in equity, without the
necessity to post a bond or prove special damages, to enforce the specific
performance of the terms and conditions of this Agreement, to enjoin further
violations of the provisions thereof and/or to obtain damages. Such remedies
shall however be cumulative and not exclusive and shall be in addition to any
other remedies which the Company may have under this Agreement or at law. The
Supplier agrees that the provisions contained in this Agreement, including
without limitation those contained in Sections 2 and 6 are reasonable and
necessary for the protection of the Company.
Section 7. Representations and Warranties. Each party hereby represents
and warrants to the other than (i) it has all requisite power and authority to
enter into and perform this Agreement in accordance with the terms hereof, (ii)
the execution and delivery of this Agreement and the performance of it of the
transactions contemplated hereby have been duly authorized and no further
consent or authorization of any third party is required, (iii) this Agreement
has been duly executed and delivered by its authorized representative, and such
authorized representative is the true and official representative with the
authority to sign this Agreement and bind such party, and (iv) this Agreement
constitutes a legal, valid and binding obligation of it, enforceable against it
in accordance with the terms hereof.
Section 8. Miscellaneous. Any and all previous agreements and arrangements
between the parties are hereby terminated and have no further force and effect.
This Agreement shall inure to the benefit of the parties hereto and their
respective successors and assigns. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to choice of law doctrine. Each party hereto consents to personal
jurisdiction in New York State and voluntarily submits to its jurisdiction in
any action or proceeding with respect to this Agreement. Venue for any action
arising hereunder shall lie in the state and federal courts located in New York,
New York. This Agreement shall constitute the entire agreement, whether oral or
written, of the parties hereto and may only be amended by a writing executed by
the parties hereto. This Agreement can be executed by facsimile and in
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
[Remainder of Page Intentionally Omitted; Signature Pages to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Vision Bioenergy Australia Pty Ltd.
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Director
SRW Nominees Pty. Ltd.
Trading as Big Ben Services
By: /s/ Xxx Xxxxxxx
----------------------------
Name: Xxx Xxxxxxx
Title: Director
