DISTRIBUTION AGREEMENT
THIS
AGREEMENT
is
entered into this ____ day of July, 2006 by and between Axial Vector™ Engine
Corporation (hereinafter “AVEC”) and Dynamic Engines Limited (hereinafter
“DEL”)
RECITALS
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A.
|
WHEREAS
AVEC is a publicly traded, Nevada corporation that manufactures
power-generating equipment called
GENSETS;
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|
B.
|
WHEREAS
DEL is a New Zealand company that desires to distribute these GENSETS
in
New Zealand as the exclusive distributor for
AVEC;
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|
C.
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WHEREAS,
AVEC and DEL will require access to each others’ Confidential Information,
as such term is defined herein, in connection with any such transactions
of AVEC with DEL; and
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|
D.
|
WHEREAS,
AVEC and DEL are willing to provide access to each others’ confidential
information, provided that both parties, including their respective
agents, officers, affiliates, employees and representatives (collectively
“Representatives”) agree to restrict disclosure and use of all such
Confidential Information according to the terms of this
Agreement.
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THE
PARTIES AGREE AS FOLLOWS:
1.
Distribution
Fee
DEL
will
pay to AVEC the sum of One Thousand Dollars ($1,000.00) U.S. Dollars as a
Distribution Fee to become the Exclusive Distributor of GENSETS in New Zealand.
This fee was set in acknowledgement of the contribution made by DEL. The
contribution includes exploratory and application development work undertaken
and transferred to AVEC that has enhanced the value of AVEC owned intellectual
property.
This
fee
takes into account the costs of exploratory development work that DEL has
undertaken on behalf of Avec.
2.
Exclusive
Distribution for New Zealand Renewable
This
distributorship shall be exclusive for the country of New Zealand for a period
of twenty years. This term shall be renewable upon mutual consent of the parties
for additional terms of twenty years. Such mutual agreement must be completed
no
later than sixty days before the close of the initial term, and each renewal
term must be evidenced in writing and
signed
by
both parties. Any such renewal term, as well as the initial term, is subject
to
earlier termination as provided for elsewhere in this Agreement. AVEC may choose
not to renew this Agreement for any reason, for which it may terminate this
Agreement pursuant to Section 11 of this Agreement, or because the parties
are
unable to agree upon the terms of renewal.
| a) |
First
Right of Exclusivity for Other
Territories
|
DEL
shall
have the first right to negotiate and purchase the exclusive distribution rights
for Australia and the South Pacific island states of the Xxxx Islands, Tonga,
Samoa, Niue and Fiji under such terms as may be agreed upon at such time as
AVEC
enters the market with those products in these territories. In the event that
DEL declines the right or is unable to meet the terms offered by AVEC, AVEC
shall be entitled to offer the rights to those products and/or services to
a
third party. If, however, such offer is on terms more favorable than offered
to
DEL, AVEC must first again offer the to DEL on such new terms.
3. First
Right of Exclusivity for Other AVEC Products
DEL
shall
have the first right to be the exclusive distributor for other AVEC products
and
services in New Zealand under such terms as may be agreed upon at such time
as
AVEC enters the market with those products in New Zealand. In the event that
DEL
declines the right or is unable to meet the terms offered by AVEC, AVEC shall
be
entitled to offer the rights to those products and/or services to a third party.
If, however, such offer is on terms more favorable than offered to DEL, AVEC
must first again offer the rights to DEL on such new terms.
4.
Purchase
of GENSETS™ from AVEC by DEL
DEL
shall
purchase the GENSETS from AVEC at AVEC’s cost plus 15 %. All funds shall be in
U.S. Dollars. Price changes and credit terms shall be at the sole discretion
of
AVEC. Sales in DEL’s exclusive sales areas shall only be by DEL unless otherwise
agreed to by both Parties to this agreement
5.
Reasonable
Efforts to Meet Demands
AVEC
will
exert reasonable efforts to supply the needs of DEL for products to meet its
demands. DEL agrees to keep an adequate supply of GENSETS to meet its customer
demands. DEL shall sell a minimum number of GENSETS annually to remain AVEC’s
exclusive distributor in New Zealand. The minimum number of units to be sold
shall be periodically reviewed and revised by both parties. AVEC shall have
the
right to set a minimum sales standard consistent with sales expectations based
upon population and regional demands.
6.
Promotion
of AVEC’s Products
DEL
will
take the following steps to promote the products of AVEC:
(a) Product
shows.
(b) Advertising.
(c) Website
presence.
(d) Accessible
showroom or product demonstration sites.
7.
Licenses
and Permits
DEL
will
be responsible for obtaining all licenses, permits and other governmental
authorities to sell AVEC products in New Zealand. DEL will conduct its efforts
in accordance with all applicable national and local regulations and with the
highest commercial standards.
8.
Development
of Marketing Plan and Pricing
DEL
shall
be responsible for developing its own marketing plan and system with the
approval of AVEC. AVEC will provide materials relative to the GENSETS for the
use of DEL. Such materials to include, but not limited to, service manuals,
operating manuals and warranties. AVEC may make recommendations on any phase
of
the business of selling the products, including pricing. The prices set by
DEL
shall be in conformance with the recommended pricing set by AVEC at all times.
DEL shall maintain one place of business with parts, service facilities and
a
showroom.
9.
Warranty
AVEC
shall develop a product warranty program prior to any sales and the terms
thereof shall be attached hereto as Addendum A. The warranties will provide
for
the length in time, limitations for AVEC and DEL, the terms for replacement
and
repair, the costs to AVEC and DEL, the roles and responsibilities of each Party
and management and cost recovery to each Party.
10.
Relationship
of Parties
The
relationship of DEL to AVEC during the term of this Agreement and any renewal
of
this Agreement shall be that of an independent contractor. The sole interest
and
responsibility of AVEC shall be to ensure that DEL performs the activities
described in this Agreement in a competent, efficient and satisfactory manner.
Neither DEL nor any employee of DEL shall be deemed employees of AVEC for any
purpose whatsoever and shall not be eligible to participate in any benefit
program provided by AVEC for its employees.
DEL
shall
be exclusively responsible for payment of all wages and salaries, taxes,
withholding payments, penalties, fees, fringe benefits, liability insurance
premiums, contributions to insurance and pensions or other deferred compensation
plans, including, but not limited to, worker’s compensation and social security
obligations, license fees, etc., and the filing of all necessary documents,
forms and returns pertinent to the foregoing. This Agreement is in no way to
be
construed as an employment agreement. DEL shall not bring and shall hold AVEC
harmless and provide AVEC with a defense against, any and all claims that AVEC
is responsible for payment or reporting any of the foregoing payments,
withholdings, contributions, taxes, or the filing of any documents or
returns.
11.
Termination
| a) |
This
Agreement will terminate immediately and without notice upon the
institution of insolvency, bankruptcy or similar proceeding by or
against
DEL, or any assignment or attempted assignment by DEL for the benefit
of
creditors, or any appointment, or application for such appointment,
of a
receiver for DEL.
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| b) |
Either
party may upon mutual agreement, with or without cause, upon thirty
days
written notice to the other party during the initial term or during
any
renewal term of this Agreement, terminate this
Agreement.
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| c) |
Without
limiting the generality of Section (b) above, AVEC may also terminate
this
Agreement:
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| i) |
Upon
thirty days prior written notice by AVEC to DEL given at any time
after
the occurrence of any of the following events; provided, however,
that DEL
shall have fifteen working days from the date of such notice to cure
any
such default or to prepare a plan to rectify the fault which is acceptable
to AVEC:
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A)
DEL’s
breach of, or failure to comply with, any term or provisions of this
Agreement;
B)
DEL’s
failure to pay AVEC any sums due pursuant to the terms of this Agreement within
ten working days following the date on which such sum is due and payable;
or
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C)
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DEL
becoming insolvent or unable to pay its obligations as they become
due;
or
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| ii) |
Immediately
upon written notice by AVEC to DEL, given at any time after the occurrence
of any of the following events:
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A) DEL’s
voluntary abandonment of the business contemplated under this
Agreement;
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B)
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DEL’s
failure to meet any performance standards provided under this Agreement
with respect to sales of the products during a specified period;
provided,
however, that such written notice by AVEC is delivered within ninety
days
after the conclusion of such specified period;
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C)
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The
conviction of DEL in a court of competent jurisdiction of any offense
substantially relating to the business conducted by DEL in connection
with
this Agreement, or any other offense punishable by a term of
imprisonment;
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D)
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DEL’s
engaging in any practice with respect to the products which is determined
to be an illegal or unfair trade practice in violation of any applicable
federal, state or local law;
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E)
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A
lien is voluntarily granted by DEL on DEL’s inventory, or there is an
involuntary lien placed on DEL’s inventory which has not been removed
within ten working days;
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F)
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DEL’s
falsification of any records or reports provided to
AVEC;
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G)
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Any
lien or levy against, or foreclosure or seizure of, any of DEL’s assets by
a creditor, lienholder, lessor, or government authority;
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H)
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DEL’s
failure to act in good faith and in a commercially reasonable manner
in
connection with its obligations under this
Agreement;
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I)
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DEL’s
loss through failure to renew or because of suspension, cancellation
or
revocation for a period of fifteen working days or more, or any federal,
state or local license required by law and necessary in carrying
out the
provisions of this Agreement;
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J)
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Any
change in DEL’s active management, which change, in the opinion of AVEC,
will have a material effect on DEL’s ability to distribute and promote the
products. DEL shall have the right within ten working days to request
an
independent opinion by a third party acceptable to both Parties as
to
AVEC’s conclusion that such material effect has taken place. Such a change
includes, but is not limited to, the death of a director of DEL,
or the
incapacity of a director for a period of more than sixty
days;
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K)
For purposes of clause 11(c)(ii)(E) and 11(c)(ii)(G) above, any lien provided
to
a financial institution as security for financial advances, will not
provide AVEC with the right to terminate this Agreement.
| d) |
Upon
any termination of this Agreement in accordance with this Section
11 of
this Agreement, AVEC shall have the option, but not the obligation,
to
repurchase DEL’s remaining inventory of the products at the price paid to
AVEC for such inventory by DEL.
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| e) |
After
the expiration of this Agreement, or termination of this Agreement
in
accordance with Section 11, neither party shall have any other rights
or
obligations in respect to each other except that any such expiration
or
termination shall be without prejudice to the rights and obligations
of
the parties in respect to the products sold or delivered to DEL prior
to
the termination. In addition, the provisions of Sections 12 and 13
shall
survive the expiration or termination of this
Agreement.
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| f) |
Either
party may terminate this Agreement immediately, with notice, in the
event
that the parties are unable to agree on the content of the sales
levels
and expectations to be agreed in terms of clause 5 above, or the
content
of the warranty referred to as addendum A in clause 9
above.
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12.
Intellectual
Property Protection
| a) |
DEL
hereby acknowledges that AVEC is the sole owner of the GENSETS proprietary
technology, names, marks and graphic designs (collectively, the "Marks"),
which identify the products, technology and process, which are valuable
assets of AVEC. DEL further acknowledges that such Marks shall remain
the
sole and exclusive ownership and control of AVEC and that DEL has
not
acquired any right, title or interest in the Marks except as provided
in
this Agreement.
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| b) |
Subject
to the terms of this Agreement AVEC hereby grants DEL the limited,
non-exclusive, right to use the Marks while this Agreement is in
full
force and effect to accomplish the purposes contained in this Agreement.
Notwithstanding the foregoing AVEC does not grant DEL the right to
transfer, encumber, license, sublicense or otherwise facilitate,
permit or
suffer the use of the Marks other than with strict conformity with
the
rights granted herein. In the event that further licensing or sub
licensing of the use of the Marks is required it shall require and
shall
occur only with the written consent of
AVEC.
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| c) |
DEL
acknowledges that AVEC is the sole and exclusive owner of the Marks
and of
all other names and marks used by AVEC to identify its products,
and
technologies. Except for the rights expressly granted in this Agreement,
the right of AVEC to use such names and the Marks is sole, exclusive
and
absolute, and no license shall be implied by the rights given herein.
Nothing in this Agreement, in the conduct of the parties under this
Agreement, or in the relation of the parties to this Agreement shall
create any right, title or interest in DEL in any Marks or goodwill
now or
hereafter associated with AVEC or with the products and technology,
except
as expressly granted in this Agreement. Any and all goodwill and
value
associated with the Marks, including accretions thereto during the
term of
this Agreement, irrespective of the reason therefore or cause thereof,
shall inure directly and exclusively to the benefit, and be the exclusive
property of AVEC.
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| d) |
DEL
acknowledges and agrees that it is vital to the business of AVEC
that the
Marks be associated only with marketing methods of the highest quality,
and that the customer acceptance and goodwill inherent in the Marks
be
preserved and enhanced in the course of sales of the products, technology
and process. DEL commits to use the Marks with such marketing methods
and
standard of quality of highest quality and which are acceptable to
AVEC.
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| e) |
In
the event that AVEC, in its sole discretion, decides to modify or
discontinue use of any proprietary Marks, or to develop additional
or
substitute marks, DEL shall, within a reasonable time after receipt
of
written notice thereof, take such action, at DEL’s sole expense, as may be
necessary, to comply with such modifications, discontinuation additions
or
substitutions.
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13.
Covenant
of Non-Compete, Non-Disclosure, Non-Circumvention and
Confidentiality
NOW
THEREFORE, in consideration of the promises and mutual covenants contained
herein, it is agreed as follows:
| a) |
“Confidential
Information” means all information relating to each party’s business
contacts, clients in trade, customer lists, credit information, customer
contracts, trade secrets, pending or granted patent applications,
invention disclosures, drawings, documents, specifications, models,
customers, suppliers, warranty information, production processes,
supply
sources, supply contracts, plans, distributors, licensees, marketing
studies, profits, costs, pricing, manufacturing processes, and all
other
technical product, business and/or financial information which either
party holds confidential and/or proprietary in nature. The term
“Confidential Information” excludes any information that (i) is already in
the public domain and/or otherwise known to the party or its
Representatives prior to disclosure by the opposite party hereto;
(ii)
becomes generally available to the public other than as a result
of
disclosure by the party or its Representatives; or (iii) becomes
lawfully
available to the party or its Representatives on a non-confidential
basis
from a source (other than the opposite party hereto) that is not
bound by
a confidential relationship concerning the Confidential
Information.
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| b) |
The
parties will not at any time, or in any fashion, form or manner,
either
directly or indirectly, divulge, disclose or communicate to any person,
firm or corporation in any manner whatsoever, any information of
any kind,
nature or description concerning any matters affecting or relating
to the
business of the other party, including without limiting the generality
of
foregoing the names of any of its customers, the prices it obtains
or has
obtained or at which it sells or has sold its products or at which
it buys
or has bought materials, components or other supplies, the methods
or
processes of production or manufacture of its products or any other
information of, about or concerning the business of the other party,
its
relations with its employees, and its manner of operation, its plans,
or
other data of any kind, nature or description, the parties hereby
stipulating that as between them the same are important, material,
confidential and are trade secrets and gravely affect the effective
and
successful conduct of the business of the other party and its goodwill,
and that any breach of the terms of this section is a material breach
hereof.
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| c) |
During
and after the term of this Agreement, not to take, without the written
consent of the other party, any notes, reports, calculations, plans,
models, sales data, papers, drawings, documents, contracts, customer
and
supplier lists, diaries, phone information, trade secrets, research
data,
production processes, product specifications, blueprints, correspondence,
memoranda, or other written records or materials belonging to the
other
party or in its possession. Both parties also covenant and warrant
not to
take any computer diskettes, magnetic tapes or other storage media
in any
tangible form containing such information. Upon termination of this
Agreement, each party shall immediately deliver all the materials
described in this paragraph to the other
party.
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| d) |
This
non-disclosure and confidentiality covenant shall not affect AVEC
or DEL
or their assigns from making normal-course disclosures pursuant to
SEC
regulations or from issuing press releases or from providing such
information as may be necessary to carry out the terms and conditions
of
this Agreement and the obligations and duties contemplated
thereunder.
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| e) |
The
parties agree to hold, keep and maintain all Confidential Information
disclosed by the opposite party hereto as strictly confidential and
agree,
and shall cause or direct their Representatives to agree, to: (a)
hold in
confidence and not deliver, show, summarize or otherwise make available
the Confidential Information to any person (except for each party’s
Representatives to the extent that they may have a need to know the
Confidential Information in connection with any transaction or as
required
by law or court order), without the prior written consent of the
opposite
party hereto; (b) not to use the Confidential Information in any
fashion,
except solely for the proposes of completing a review of the other
party’s
information in connection with any proposed transaction of the parties;
(c) exercise due care to avoid unauthorized publication or disclosure
of
the Confidential Information by either party, its Representatives,
and/or
others; (d) upon the request of either party, to return all written
Confidential Information, if any, provided to the other party and/or
its
Representatives, and not to retain any copies or other reproductions,
summaries, or abstracts thereof. Each party hereto shall take all
reasonable measures to protect the confidentiality and avoid the
unauthorized use, disclosure, publication, or dissemination of details
of
any business transaction contemplated by the parties or any Confidential
Information acquired.
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| f) |
The
parties acknowledge that a breach of this Covenant would immediately
result in irreparable harm to the other party for which the parties
acknowledge that it would be extremely difficult (if not impossible)
to
ascertain the damages to the breaching party, and that there would
be no
adequate remedy at law. Therefore, the parties hereto agree that,
in the
event of any breach or threatened breach or violation of the terms
of this
Covenant, each respective party shall have the right, in addition
to any
other rights or remedies available at law or in equity (and not in
lieu
of, including damages), to obtain specific performance and injunctive
relief enjoining the other party in any court of competent jurisdiction.
The upper limit of any monetary award shall be $250,000.00. If a
party or
any of its Representatives is required in any civil or criminal legal
proceeding or any regulatory proceeding or pursuant to any form of
legal
process to disclose any part of the Confidential Information, the
party
shall, if possible, give the other party prompt notice thereof so
that
party may seek an appropriate protective order or waive in writing
compliance with the provisions of the Covenant.
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| g) |
Neither
party nor its Representatives shall without the prior written consent
of
the other party, disclose to any person either the fact that discussions
or negotiations are taking place, or have taken place, concerning
a
possible business relationship between the parties, or disclose any
of the
terms, conditions, or other facts with respect to any such possible
business relationship, including the status thereof, until such time
as
the other party has advised the opposite party hereto in writing
that such
Confidential Information need not be maintained any longer as Confidential
Information.
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| h) |
Each
party hereto covenants with the other party that during the term
of this
Agreement, neither they nor their Representatives will deal directly
with
any of the other party’s business contacts or clients, in trade, except
for unrelated transactions, without the other party’s prior knowledge and
written consent. In the event that either party hereto breaches this
provision, the opposite party shall be entitled to immediate compensation
from the breaching party in an amount equal to their customary fee
in
business transactions of a similar nature.
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| i) |
Each
party hereto covenants to the other party that neither they nor their
Representatives will in any way circumvent, avoid, bypass, or in
any way
harm or diminish the economic interest of the opposite party hereto
(or
make, assist, authorize, or permit any effort to do so), either directly
or indirectly, in connection with any business transactions contemplated
by the parties as it relates to the provisions of any transactions
in
which either party hereto will, or can reasonably be expected to
derive
financial benefit.
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July
2006
AVEC - DEL Distribution
Agreement
Page 10 of 14
| j) |
The
confidentiality clauses in this Agreement, shall commence and be
effective
as of the date first written above and will remain in full force
and
effect until the party providing the information authorizes the release
thereof.
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14.
Any
disputes under or relating to this Agreement shall be resolved by final and
binding arbitration under the laws of the State of Nevada and under the
commercial rules of The American Arbitration Association; provided that either
party hereto shall nevertheless have the right to institute a lawsuit to
pursue
interim, equitable remedies. In the event any party hereto institutes any
lawsuit, arbitration, or other proceeding to construe or enforce any agreement,
the prevailing party will be entitled to recover its costs and expenses,
including reasonable attorney fees and costs, incurred in doing
so.
15. This
Agreement shall be governed by the laws of the State of Nevada applicable
to
contracts entered into, and to be fully performed, in said state. This Agreement
may be executed in counterparts, which when taken together, shall constitute
on
and the same instrument. Faxed signatures shall be deemed effective as originals
for all purposes.
16.
This
Agreement constitutes the entire agreement and supersedes any prior agreements
or understandings between the parties hereto regarding Confidential Information,
Nondisclosure and Circumvention, and no amendment, alteration or waiver of
this
Agreement shall be valid or binding unless made in writing and signed by
all
parties hereto.
17.
No
waiver
of any provision of this Agreement shall be deemed, or shall constitute,
a
waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed
in
writing by the party making the waiver.
18.
If
any
judicial proceeding a court shall refuse to enforce all the provisions of
this
agreement, any unenforceable provision shall be deemed eliminated from the
Agreement for the purpose of such proceeding as is necessary to permit the
remainder of the Agreement to be enforced in such proceeding.
19.
Nothing
contained in this Agreement shall be construed as granting or conferring
any
rights by license or otherwise in any Information disclosed, or under any
trademark, patent, copyright or any other intellectual property right of
either
party. None of the Information which may be disclosed or exchanged by the
parties shall constitute any representation, warranty, assurance, guarantee
or
inducement by either party to the other of any kind, and, in particular,
with
respect to the to the non-infringement of trademarks, patents, copyrights
or any
other intellectual property right. In order to preserve the value of AVEC’s and
July
2006
AVEC - DEL Distribution
Agreement
Page 11 of 14
DEL’s
name and/or trademarks, service marks or trade names (collectively “Marks”)
neither AVEC nor DEL shall make use of the other’s Marks for any reason
including, without limitation, advertising, press releases or other publicity,
except upon written authorization of the releasing party.
20.
Each
party agrees that it will not, without prior written consent of the party,
transmit, directly or indirectly, the Information received from the other
party
hereunder or any portion thereof to any country outside of the United States
if
the export or re-export of such Information is prohibited by U.S. export
laws.
21.
All
notices provided for by this Agreement shall be made in writing by delivering
personally or by mailing of such notice to the Parties hereon, registered
or
certified mail, postage prepaid, at the following addresses or at such other
addresses designated in writing by one Party to the other:
DEL:
Racewell,
Ltd.
00
Xxxx
Xxxxxx
Xx
Xxxxx
Xxx
Xxxxxxx
AVEC:
One
World
Trade Center
000
XX
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx,
XX 00000
and
Xxxxxxx
X. Xxxxxx
Attorney
at Law
0000
XX
00xx
Xxxxxx
Xxxxxxxx,
XX 00000
22.
Separate
Counsel
DEL
and
AVEC warrant that they have been represented in this transaction by their
separate attorneys, CPAs or other persons that they believe necessary to
evaluate the content and form of this Agreement. DEL also warrants that it
has
not been represented in this transaction by AVEC’s attorney.
23.
Business
Records
DEL
shall
keep full and complete records of all sales performed under this Agreement
and
shall submit copies of such records to AVEC upon the expiration and/or
termination of this Agreement. DEL also agrees that such records are included
in
the confidentiality provision of Section 13 of this Agreement and that DEL
will
provide such records upon reasonable notice to AVEC while this Agreement is
in
force and effect.
July
2006
AVEC - DEL Distribution
Agreement
Page 12 of 14
24.
Representation
of Authority to Execute Agreement
Each
party to this Agreement represents that it has full power and authority to
execute this Agreement and that the execution of this Agreement is not contrary
to any existing security agreement or obligation of the undersigned, nor is
it
prohibited by any law or regulation.
25.
Force
Majeure
AVEC
shall use reasonable efforts to fill orders promptly and meet the mutually
agreed upon dates of shipment in writing. AVEC shall not be liable for delays
in
delivery and/or failure to manufacture due to causes beyond its reasonable
control, such as acts of God, acts of DEL, acts of civil or military
authorities, inability of material and/or equipment suppliers to supply, fires,
strikes, floods, wars, riots and other causes of any similar
nature.
26.
Governing
Law
This
Agreement shall be governed by and interpreted by the laws of the State of
Nevada in the Country of the United States of America.
27.
Attorney
Fees
In
the
event of a default under the agreement, the defaulting party shall reimburse
the
non-defaulting party for all costs and expenses reasonably incurred by the
non-defaulting party in connection with the default, including without
limitation attorney fees. Additionally, in the event a suit or action is filed
to enforce this agreement or with respect to this agreement, the prevailing
party shall be reimbursed by the other party for all costs and expenses incurred
in connection with the suit or action, including without limitation reasonable
attorney fees at the trial level and on appeal.
28.
Headings
The
headings used in this agreement are solely for convenience of reference, are
not
part of this agreement, and are not to be considered in construing or
interpreting this agreement.
29. Entire
Agreement
This
agreement sets forth the entire understanding of the parties with respect to
the
subject matter hereof and supersedes all existing agreements between the parties
with respect to such subject matter.
July
2006
AVEC - DEL Distribution
Agreement
Page 13 of 14
30. Counterparts
This
agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
31.
Severability
If
in any
judicial proceeding a court shall refuse to enforce any provision of this
agreement, any unenforceable provision shall be deemed eliminated from the
agreement for the purpose of such proceeding as is necessary to permit the
remainder of the agreement to be enforced in such proceeding.
32.
Waiver
No
waiver
of any provision of this agreement shall be deemed, or shall constitute, a
waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed
in
writing by the party making the waiver.
33.
Execution
This
agreement may be executed simultaneously in one or more counterparts, each
of
which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
34.
Gender
Any
indication of gender of a party in this agreement shall be modified, as
required, to fit the gender of the party or parties in question.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the
date first written above.
Axial
Vector Engine
Corporation
Dynamic
Engines, Ltd.
/s/
Xxxxxxx
Xxxxxxx /s/
__________________________
By:
Xxxxxxx
Xxxxxxx
By:
Two Directors
Its:
President
July
2006
AVEC - DEL Distribution
Agreement
Page 14 of 14
