AGENCY AGREEMENT FEBRUARY 15, 2003
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
&
ENERTECK CHEMICAL COMPANY, INC.
AGENCY AGREEMENT
BETWEEN
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
AND
ENERTECK CHEMICAL COMPANY
This Agreement ("Agreement") is entered into as of February 15, 2003 (the
"Effective Date") by and between ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.,
its divisions, its affiliate companies and concerns, a corporation organized
under the laws of Brazil (hereinafter referred to as " AGENT") and the ENERTECK
CHEMICAL COMPANY, INC., a corporation organized under the laws of the state of
Texas in the United States of America (hereinafter referred to as EnerTeck).
1. REPRESENTATION
(a) EnerTeck hereby appoints AGENT as its sole agent for the
Territory (countries) listed in Xxxxxxxx "X" xxxxxx
("Xxxxxxxxx") for the sale of EnerTeck's products and services
as listed in Appendix "B" hereto.
(b) AGENT shall not, without the consent of EnerTeck sell, rent or
distribute, directly or indirectly, any EnerTeck products or
services in any country or other location outside the
Territory.
(c) AGENT hereby accepts its appointment on the terms and
conditions herein set forth.
2. DUTIES OF AGENT
In consideration of the above appointment and the commission to be paid
by EnerTeck to the AGENT hereunder the:
(a) AGENT shall establish and maintain a sales program for the
sale of the EnerTeck products and services covered by this
Agreement and shall maintain facilities and personnel as are
reasonably adequate to perform its obligations under this
Agreement.
(b) AGENT shall promptly transmit to EnerTeck inquiries and orders
for EnerTeck products and services in the Territory of the
AGENT. Agent shall coordinate negotiations and communication
on behalf of EnerTeck for all prospective sales on EnerTeck's
products and services within the Territory.
(c) AGENT shall make no warranties, representations or
certifications with respect to the EnerTeck products and
services without the prior consent of EnerTeck. AGENT shall
AGENCY AGREEMENT FEBRUARY 15, 2003
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
&
ENERTECK CHEMICAL COMPANY, INC.
hold EnerTeck free and harmless from any claims, lawsuit,
damages and cost and expenses caused by it having made any
such unauthorized warranties and representations.
(d) AGENT, at its sole expense, shall comply with all the laws,
regulations and rules applicable to its operations and to its
performance of this Agreement. AGENT shall hold EnerTeck free
and harmless from any claims, damages, lawsuits, penalties and
costs and expenses caused by AGENT's failure to comply with
any such laws, regulations and rules.
(e) AGENT shall not, directly or indirectly, infringe or contest
the validity of or the title of EchemTrade to any of the
patents, trademarks and trade names owned by EnerTeck or under
which EnerTeck is licensed. The termination of this Agreement
for any reason shall in no way release or discharge AGENT from
the estoppel herein set forth.
(f) Agent shall, at the request of EnerTeck, assist in expediting
and obtaining import and export permits and licenses, required
customs clearance and delivery of shipments to EnerTeck's
customers. All costs and charges shall be pre-approved and
Enerteck agrees to reimburse AGENT the actual costs and
expenses, plus a service charge of five (5) percent of the
actual costs and expenses, incurred by AGENT on behalf of
EnerTeck in performing these services. Proper documentation
should be presented to EnerTeck no later than 90 days from the
date that said expenses were incurred.
(g) AGENT will not sell, rent or distribute, indirectly or
directly, any of the EnerTeck products and services for use or
sale in any area in or to which EnerTeck itself would be
prohibited by applicable law, regulations or order of the
United States of America, or any of the governmental agencies
thereof, from selling, distributing renting or otherwise
permitting the use of said products and services.
(h) AGENT shall reasonably assist EnerTeck in tracking and
expediting payment of outstanding invoices and receivables as
required, advise and assist EnerTeck in the establishment of
relationships between EnerTeck and banking institutions and
professional advisors in the country of sale, and provide
other services similar to those hereinabove described which
are appropriate and necessary in connection with EnerTeck's
business activities in the country.
(i) AGENT shall perform its services with that standard of care,
skill and diligence normally provided by an agent in the
performance of similar services. Agent understands that
EnerTeck will be relying upon the accuracy, competence and
completeness of Agent's services in initially deciding whether
to seek to obtain a contract with respect to a qualifying
project or customer.
3. AUTHORITY / LIMITATIONS
Services performed or actions taken on behalf of EnerTeck by Agent
shall only be as specifically requested and authorized by EnerTeck.
Agent understands and agrees that it is an independent contractor and
not an employee of EnerTeck, and that this Agreement does not establish
a
AGENCY AGREEMENT FEBRUARY 15, 2003
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
&
ENERTECK CHEMICAL COMPANY, INC.
partnership between the parties, and that agent has no authority to act
on EnerTeck's behalf or bind EnerTeck in any way except as EnerTeck may
expressly direct and confirm in writing.
AGENT shall have no authority to accept direct payments from customers
without the express written consent of EnerTeck.
4. CONFIDENTIALITY
Both parties shall maintain as confidential all information relating to
their respective products, personnel, customers, business operations,
financial condition, supplied by either party separately and/or
developed jointly by the parties. Both parties further agree to
safeguard as confidential all price books, customers' lists,
quotations, discount schedules, product formulations and engineering
data, in any form, and will not permit their use in any way which would
be detrimental to either party. Both parties also agree to surrender
all confidential data to other party on cancellation or termination of
this agreement, and will not retain copies or memoranda of said
information in any form whatsoever. This clause shall remain effective
even after the cancellation or termination of this agreement for any
reason.
5. COMMISSIONS
EnerTeck will pay AGENT a commission only for payments from sales
actually received as outlined in Appendix "B". The aforesaid will apply
to customers for the territory of representation covered by this
Agreement, beginning on the effective date of this Agreement. EnerTeck
will pay such commission to Agent within five (5) days following
receipt of payment of invoices and forward invoice copies to the Agent
in order to verify commission amounts owed by EnerTeck.
The commission shall be paid to Agent's bank account in US dollars to
any commercial bank in the USA designated by Agent to receive such
payments.
EnerTeck shall pay commissions to Agent on all commercial accounts in
Agent's territory for as long as this Agreement in force and such
commission payment for Active Commercial Accounts at the time of
termination shall continue for five years from the effective date of
termination of this Agreement, regardless of the reason for
termination, or as Parties may mutually agree. An Active Commercial
Account shall be defined for these purposes as any account that has
purchased and paid for EnerTeck Products within the preceding
twelve-month period.
It is the right of EnerTeck, at its sole discretion, to accept or
refuse any contract. Any EnerTeck decision to refuse a potential
contract will not entitle the Agent to any right to commission.
The Parties agree that from time to time as the Parties may agree,
EnerTeck may make advance commission payments to Agent as a draw
against future commissions and/or reimburse Agent for extraordinary
business expenses. EnerTeck shall reimburse Agent for for business
expenses incurred outside of the Territory at the request of EnerTeck..
Any such payments to Agent by EnerTeck do not constitute an obligation
by EnerTeck to engage or make payments to Agent except as outlined
herein.
AGENCY AGREEMENT FEBRUARY 15, 2003
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
&
ENERTECK CHEMICAL COMPANY, INC.
6. PRICES: TERMS AND CONDITIONS OF SALE
All sales shall be subject to EnerTeck's agreed prices, terms and
conditions and such prices, terms and conditions are subject to change
without notice, unless otherwise agreed in actual sales contracts with
Agent's customers. EnerTeck shall provide Agent with current product
prices on a regular basis, in writing, and such prices will remain
effective until fifteen days after Agent receives a written notice of
any price change. Agent shall not represent that Agent has authority to
bind or commit EnerTeck to any prices or commercial terms other than as
communicated in writing to Agent by EnerTeck.
7. ORDERS AND REPORTS
AGENT will, at EnerTeck's request furnish to EnerTeck periodic status
reports giving to the fullest extent possible all known information
regarding the status of tenders, bids, competitors, business and other
relevant information.
8. ADVERTISING
Agent will NOT issue or publish any form of advertising or literature
which in any way relates to EnerTeck or its products and services
without first submitting the exact form and content thereof, together
with information relating to the proposed dates and places of
publication, to the EnerTeck notification address listed in Appendix
"C".
Prior to publication or distribution of the advertising or literature,
AGENT will obtain EnerTeck's approval and authorization of the form,
content and specifications of the proposed advertising or literature.
AGENT will comply with all directions for changes in the form, content
or specifications of such advertising or literature requested by
EnerTeck. EnerTeck will provide to AGENT current sales literature,
brochures, promotional items and technical information on the products
and services covered by this Agreement, as necessary to assist in
obtaining business per the Agreement. This material will be written in
the English language only and will be provided at no charge to AGENT.
All such information, brochures, literature, promotional items and
technical information in the possession of AGENT shall be returned to
EnerTeck upon request and/or upon the termination of this agreement.
9. RELATIONSHIP OF THE PARTIES
AGENT is now and will at all times act as and hold itself out as an
independent entity. AGENT and EnerTeck, hereby agree that neither this
Agreement nor any activity undertaken in accordance with it shall
create any other relationship between the AGENT and EnerTeck. Neither
parties have been granted by the other any right or authority to assume
or create any obligation or responsibility for or on behalf of the
other unless agreed otherwise to in writing.
AGENCY AGREEMENT FEBRUARY 15, 2003
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
&
ENERTECK CHEMICAL COMPANY, INC.
10. COMPETITION
AGENT agrees that it shall (i) not furnish services similar to or that
competes with the services being provided by AGENT to EnerTeck pursuant
to this agreement to any third party in competition with EnerTeck, (ii)
not directly engage in, (iii) not enter into a joint venture, or (iv)
not acquire a company or other entity which engages in the particular
business activities offered by EnerTeck in the territory.
11. INDEMNITY
EnerTeck agrees to protect, defend, indemnify and hold harmless and
release AGENT, its parent, subsidiary and affiliated companies, its
officers, directors and employees, from and against any manner of loss,
liability, claim, damage, penalty or cost, including but not limited
to, reasonable attorney's fees arising in connection with this
Agreement that is asserted by any third party to the extent that such
loss is caused by any product, act, or omission of EnerTeck.
AGENT agrees to protect, defend, indemnify and hold harmless and
release EnerTeck, its parent, subsidiary and affiliated companies, its
officers, directors and employees, from and against any manner of loss,
liability, claim, damage, penalty or cost, including but not limited
to, reasonable attorney's fees arising in connection with this
Agreement or that is asserted by any third party to the extent that
such loss is caused by any act or omission of Agent.
12. COMPLIANCE WITH U.S. LAW
Notwithstanding anything to the contrary contained elsewhere in this
Agreement or in any Exhibit hereto, performance by EnerTeck or of any
of its obligations under the provisions of this Agreement shall be
subject to the laws of the U.S., including, without limitation, U.S.
Department of State, Treasury or Commerce Export Control or other U.S.
Government regulations pertaining to export and re-export, transfer or
disclosure, directly or indirectly, or products and/or technical data
supplied under or in accordance with this agreement.
Non-performance in whole or in part by EnerTeck because of said U.S.
laws or regulations shall not be construed by any of the parties, and
shall not constitute a default by EnerTeck of any obligation applicable
to EnerTeck. Such non-performance shall not subject EnerTeck to any
liability for damages and convey any right to AGENT to terminate this
Agreement. Furthermore, that AGENT does not have the authority to,
without prior written consent of EnerTeck, export any product made by
the use of such technical data, directly or in-directly, to any such
country as may from time to time be specified by the U.S. Department of
State, Treasury or Commerce Export Control, as a country to which such
exports are limited or to anyone in any such country or any national
thereof. It also being understood that EnerTeck's power to give consent
to such sales or products or components thereof, or the transfer or
disclosure of technical data will be forbidden to give such consent,
and in no event shall EnerTeck's failure to give such consent be
grounds for a claim right or cause of action on the part of AGENT.
AGENCY AGREEMENT FEBRUARY 15, 2003
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
&
ENERTECK CHEMICAL COMPANY, INC.
AGENT covenants that it is familiar with the U.S. Foreign Corrupt
Practices Act of 1977, as amended, "the Act", and it proposes and
represents that neither Agent nor any of its shareholders, officers,
directors, or employees will perform any service or action that would
or might constitute any such violation.
13. AMENDMENTS
This Agreement may be amended only by written agreement of both Agent
and EnerTeck.
14. ASSIGNMENT
This Agreement is not assignable, by operation of law or otherwise,
without the prior written consent of the non-assigning party hereto.
If both parties consent to an assignment, this Agreement is binding and
enforceable against successors, successors in office and assigns of
both parties. The respective parties agree to get approvals and
concurrence of their successors and assigns.
15. TERM AND TERMINATION
(a) This Agreement shall be effective as of the Effective Date and
shall continue in force for five (5) years thereafter unless
terminated as hereinafter provided. This Agreement shall be
evergreen and shall automatically renew for one-year periods
unless the terminating party gives a written one-year
cancellation notice to the other party. The term may be
extended, by mutual consent, for such periods thereafter
subject to termination as hereinafter provided.
(b) In the event of the termination at the initiative of Enerteck,
orders, letters of intent and contracts obtained through the
effort of Agent for EnerTeck's Products and Services at any
time within three (3) months following the termination of this
Agreement, provided the prospect for such orders with the name
of the customer is provided in writing by AGENT to EnerTeck
within thirty (30) days after termination of this Agreement,
shall entitle AGENT to a commission therein as if this
Agreement were still in force.
(c) This Agreement may be terminated by EnerTeck with immediate
effect and without recourse against EnerTeck, including but
not limited to liability for any damages, or penalty to AGENT
upon the occurrence of any of the following events:
(i) Breaches any material obligation imposed by this
Agreement providing that such material breaches are
not reasonably remedied within sixty (60) days of
written notice of breach.
(ii) Becomes insolvent, or subject to a petition in
bankruptcy filed by or against it or is placed under
the control of receiver, liquidator or committee of
creditors
AGENCY AGREEMENT FEBRUARY 15, 2003
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
&
ENERTECK CHEMICAL COMPANY, INC.
(iii) Assigns transfers or attempts to assign or transfer
this Agreement without EnerTeck's prior consent
(iv) Ceases to function as a going concern or abandons the
territory of representation
(v) A period of three hundred sixty five days (365 days)
from the Effective Date of this agreement passes
without EnerTeck receiving a valid and acceptable
purchase order of commercial quantities of EnerTeck
products in AGENT's Territory.
Nothing contained in, nor any action taken under,
this section (d) shall constitute a waiver of any
other right or remedy available against Agent for any
breach mentioned under item (i) hereinabove.
(e) Notwithstanding any termination of this agreement, EnerTeck
agrees to honor any ongoing contractual commitments that arise
pursuant to this Agreement.
16. NOTICES
All notices and other communications provided for herein shall be
validly given, made or served, if in writing and delivered personally
or sent by certified mail postage prepaid, to the addresses listed in
Appendix "C"
Or to such other address as any party hereto, may, from time to time,
designate in writing delivered in like manner, reference Appendix "C".
Notice given by mail, as set out above shall be deemed delivered when
actually received at the appropriate address.
17. ARBITRATION
Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, shall be settled by arbitration in the United
States and conducted in the English language in Xxxxxx County, Texas,
United States. In accordance with the then current rules of the
International Chamber of Commerce, and judgment upon the award rendered
by the Arbitrator(s) may be entered in any court sitting in Xxxxxx
County, Texas, United States. In respect to any such arbitration
proceedings, the prevailing party shall be entitled to receive, in
addition to any other remedy, all costs and expenses incurred in such
proceedings, including reasonable attorney's fees.
This Agreement shall be constructed and enforced in accordance with the
laws of the state of Texas in the United States of America and filed
with the foreign government to the extent that such government
requires.
18. OTHER REPRESENTATION
AGENT shall at EnerTeck's request provide EnerTeck a list of the
companies for which it acts as representative or agent. Upon AGENT
undertaking to represent any other enterprise during
AGENCY AGREEMENT FEBRUARY 15, 2003
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
&
ENERTECK CHEMICAL COMPANY, INC.
the effectiveness of this Agreement, AGENT shall promptly inform
EnerTeck of such representation or agency relationship.
19. SEVERABILITY
If any provision or provisions of this Agreement shall be held to be in
whole or in part invalid, illegal or unenforceable in any jurisdiction,
or if any governmental agency or authority shall require the parties to
delete any provision of this Agreement, such invalidity, illegality,
unenforceability or deletion shall not impair or affect the remaining
provisions of this Agreement or the validity or enforceability of such
provision in any other jurisdiction.
The parties shall endeavor, in good faith negotiations, to replace the
invalid, illegal unenforceable or deleted provision by valid provisions
the economic effect of which comes as close as legally possible to that
of the invalid, illegal, unenforceable or deleted provision.
20. DESCRIPTIVE HEADINGS
Descriptive headings are for convenience only and shall not control or
affect the meaning or construction of any provision of this Agreement.
21. COUNTERPARTS
For the convenience of the parties, any number of counterparts of this
Agreement may be requested by one or more parties hereto and each such
counterpart shall be deemed to be an original instrument if agreed to
and signed by both parties.
22. PRIOR AGREEMENTS
The foregoing terms and conditions represent the entire agreement
between EnerTeck and AGENT with respect to the subject matter,
irrespective of inconsistent or additional terms or conditions included
in other documents of AGENT. There are no other promises, terms,
conditions or obligations; oral or written, with respect hereto other
than those contained herein.
23. GENERAL PROVISIONS
(a) This agreement is made in the English language and in the
event of doubt in interpretation between this and any other
version into which this agreement may be translated; the
English language shall prevail.
(b) The parties agree that either party shall keep its own
personnel and equipment insured and each party will cover all
of its own insurance costs.
AGENCY AGREEMENT FEBRUARY 15, 2003
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
&
ENERTECK CHEMICAL COMPANY, INC.
EXECUTED BY:
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA. ENERTECK CHEMICAL COMPANY, INC.
------------------------------- -------------------------------
/S/ /s/
Francisco XX Xxxxxxx Xxxxxxx X. X'Xxxxx
President and CEO President & CEO
DATE: 18 FEB. 2003 DATE: 27 FEB. 2003
AGENCY AGREEMENT FEBRUARY 15, 2003
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
&
ENERTECK CHEMICAL COMPANY, INC.
APPENDIX "A"
TO
AGENCY AGREEMENT
BETWEEN
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
AND
ENERTECK CHEMICAL COMPANY, INC.
TERRITORY
COUNTRY (COUNTRIES)
-------------------
BRAZIL
ARGENTINA
ECUADOR
URUGUAY
PARAGUAY
PERU
CHILE
COLUMBIA
MINIMUM ANNUAL SALES VOLUMES TO MAINTAIN GEOGRAPHIC EXCLUSIVITY
Actual sales and/or customer contracts for sales representing the following
minimum Territorial sales volumes are required for the Agent to maintain
geographic sales exclusivity in the Territory. In the event that Agent does not
achieve the minimum sales volume in any given period as provided for herein,
EnerTeck may, at its sole option, appoint additional Agents or establish its own
sales initiative within the Territory. However, in the event that Agent loses
its territorial exclusivity, EnerTeck will respect Agent's active commercial
accounts and will not compete with Agent or allow any additionally appointed
agents to compete or interfere with Agent's active commercial accounts.
Calendar Year Volume of Enerburn Sold in Territory
2003 20,000 Gallons
2004 60,000 Gallons
2005 and all subsequent years 100,000 Gallons
AGENCY AGREEMENT FEBRUARY 15, 2003
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
&
ENERTECK CHEMICAL COMPANY, INC.
APPENDIX "B"
TO
AGENCY AGREEMENT
BETWEEN
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
AND
ENERTECK CHEMICAL COMPANY, INC.
COMMISSION SCHEDULES
The following commission schedules and commission basis prices are predicated on
bulk/isotank FOB Houston, Texas for EnerTeck products sold in US dollars and
supported by a standby letter of credit on a US Bank with net 30BL payment
terms. In the event of different terms of sale such as drummed product or CIF
sales, etc., the Parties will negotiate in good faith to adjust the commission
basis price to reflect the actual changes in netback price to EnerTeck.
FOR COMPANIA VALE DO RIO DOCE (CVRD), Agent shall be paid a commission for
volumes sold to CVRD in the amount of the difference between the bulk/isotank
FOB Houston, Texas sales price paid by CVRD and/or its subsidiaries and/or
affiliate companies to EnerTeck, and the commission basis price of USD 50.00 per
US gallon of Enerburn product.
FOR ALL OTHER NON-GOVERNMENT COMMERCIAL ACCOUNTS, Agent shall be paid a
commission representing twenty percent (20%) of the amount any invoice paid by a
customer in Agent's Territory.
FOR ALL GOVERNMENT ACCOUNTS (INCLUDING BR AND PETROBRAS), agent shall be paid a
commission representing twenty-five percent (25%) of the amount of any invoice
paid by a customer in Agent's Territory.
AGENCY AGREEMENT FEBRUARY 15, 2003
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
&
ENERTECK CHEMICAL COMPANY, INC.
APPENDIX "C"
TO
AGENCY AGREEMENT
BETWEEN
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
AND
ENERTECK CHEMICAL COMPANY, INC.
CONTACT INFORMATION
ECHEMTRADE AGENT
---------- -----
Francisco X X Xxxxxxx Xxxxxxx X. X'Xxxxx
President and CEO President
Xxx Xxx Xxxxxxx 00, Xx.0 apt. 805 10701 Corporate Drive, Suite 293
Lagoa - Rio de Janeiro- Brasil Xxxxxxxx, Xxxxx 00000
22.461 240
Telephone 00-00-000-000000 Telephone (000)000-0000
Fax 00-00-000-000000 Fax (000)000-0000
AGENCY AGREEMENT FEBRUARY 15, 2003
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
&
ENERTECK CHEMICAL COMPANY, INC.
APPENDIX "D"
TO
AGENCY AGREEMENT
BETWEEN
ECHEMTRADETRADE ENERGY & PETROCHEMICALS LTDA.
AND
ENERTECK CHEMICAL COMPANY
EXCLUDED CUSTOMERS / SERVICES
CUSTOMER PRODUCTS/SERVICES
-------- -----------------
NONE NONE
