SALES REPRESENTATIVE AGREEMENT
This Agreement, agreed to and accepted as of 16 May 2000
is by and between Mag-Well, Inc., a Texas corporation,
having its principal place of business at 122 East Wisconsin
Rd. Edinburg, Texas 78539, U.S.A., ("Mag-Well"), and ACC
Ingenieria Y Servicios Especializados S.A. De C.V., Jobo No.
163, Fracc. Bosques De VHSA., TAB. 2000 C.P. 86035,
Villahermosa, Tabasco, Mexico ("Sales Representative").
WITNESSETH:
Whereas, Mag-Well is engaged in the business of
manufacturing, distributing, and selling equipment generally
used in the oil and gas related industries, and
Whereas, Mag-Well desires to engage a Sales
Representative to assist in handling the sale of its
products, materials and equipment, (the "Products"), in the
country of Mexico, ("the Territory"):
NOW THEREFORE, in consideration of the mutual covenants
and agreements herein contained, the parties do hereby agree
as follows:
1.Appointment of Sales Representative
Mag-Well hereby appoints, subject to the terms and
provisions of this Agreement, the Sales Representative to
act as Mag-Well's sales representative in the Territory.
The Sales Representative hereby accepts such appointment
2.Mag-Well's Duties
(a) Mag-Well shall advise the Sales Representative of
(1) Mag-Well's sales plans and objectives concerning
the Products in the Territory and (2) any new potential
customers located in the Territory of which Mag-Well is
aware.
(b) Subject to any applicable federal regulations, Mag-
Well shall furnish to Sales Representative from time to
time, publications Mag-Well has available containing
information such as commercial and technical data.
(c) Mag-Well shall pay to the Sales Representative
commissions as provided in Paragraph 8 below.
3.The Sales Representative's Duties
(a) The Sales Representative, at its own expense, shall
use its best efforts to assist Mag-Well in selling the
Products in the Territory by soliciting purchase orders
from customers, maintaining an adequate sales
organization, sustaining active contact with customers
informing Mag-Well of all governmental, commercial and
industrial activities and plans which affect or might
affect Mag-Well's sales, providing market information
concerning customers and competitors, recommending
improvements to Mag-Well's sales plans and strategies
and delineating customer demand for the Products and
similar products.
(b) The Sales Representative shall, when requested by
Mag-Well, act as Mag-Well's liaison to customers by
transmitting proposals and technical data, interpreting
customer inquiries, needs and attitudes and assisting
in contract negotiations and the resolution of customer
claims and complaints.
(c) The Sales Representative shall disclose to all third
parties that its relationship with Mag-Well is that of
a Sales Representative, an independent contractor, not
an employee or agent, and it shall not, by advertising
or any other means, mislead or deceive anyone, nor do
any other act which might be detrimental to the
trademarks, trade names, goodwill or reputation of Mag-
Well or its products; and should the Sales
Representative, either inadvertently or purposefully,
violate any of the foregoing prohibitions, it will, on
Mag-Well's request, discontinue such action and
undertake such other actions as Mag-Well may deem, in
its sole discretion, necessary to repair names,
goodwill and reputation.
(d) The Sales Representative shall not, at any time
either during the term of this Agreement or at any time
thereafter, divulge to any person or other entity, but
shall keep confidential, all trade secrets and
confidential information of Mag-Well received by it
during the course of its relationship with Mag-Well
including, but not limited to, business or technical
information of a proprietary nature or which is not
intended to be disclosed to others.
(e) The Sales Representative covenants not to compete
with Mag-Well at any time during the term of this
Agreement, or at any time thereafter. In particular
the Sales Representative shall not manufacture products
substantially similar to the Products.
4.Mag-Well's Rights
(a) Mag-Well has the right to determine, in every
instance, in its sole discretion, the acceptability of
any purchase order or provision thereof or condition
thereto.
(b) Mag-Well has not obligation to bid, quote prices to
or negotiate with any customer.
(c) Mag-Well has the right to refuse all attempts to
return any of its Products, and the Sales
Representative agrees not to attempt to return any
Products without the prior written consent of Mag-Well.
5.Sales Representative Status
The Sales Representative shall in no way be deemed an
employee or agent of Mag-Well. The Sales Representative
is an independent contractor and neither it nor its
agents, subsidiaries, affiliates or employees shall have
no power or authority to create any implied or expressed
liability or obligation in the name of or on behalf of
Mag-Well, and shall not enter any contract with any
person or other entity that purports to bind Mag-Well in
any sense whatsoever without written authority from Mag-
Well, and any such contract entered into by the Sales
Representative shall not be binding upon Mag-Well.
6.Limited Liability
Mag-Well's liability to the Sales Representative, any
customer or any other third party for any claim, damage,
loss or liability arising out of or relating to any of
Mag-Well's Products supplied pursuant to this Agreement
or otherwise, shall not exceed the purchase price of such
Products. Mag-Well shall in no event be liable for any
special, indirect to, loss of use of production
facilities or equipment, lost production, lost profits,
property damage or reliance damages in connection with
Mag-Well's performance of this Agreement or any sales
contract for the Products, whether such damages are
suffered by the Sales Representative, any customer or any
other third party.
7.Sales Procedure
The Sales Representative shall at all times observe the
terms and conditions of sale (including delivery periods,
price, and payment terms) prescribed by Mag-Well.
8.Compensation
(a) With respect to all direct sales by Mag-Well of
Products to customers located in the Territory in which
sales the Sales Representative participated, the Sales
Representative shall be entitled to a commission of 35%
for Products, after discounts, exclusive of all
shipping, handling, customs, and miscellaneous charges.
Any reimbursement by Mag-Well to the Sales
Representative for other expenses shall be by prior
written agreement only.
(b) Price lists for Mag-Well's products will be
furnished upon request. All list prices and discounts
are subject to change. Mag-Well reserves the right to
amend such numbers, prices and discounts by giving
notice to the Sales Representative, and such amendments
will be effective as of the date such notice is mailed
as to any order received after such date.
(c) Mag-Well shall not pay any commission or other
compensation to the Sales Representative with respect
to Products sold by Mag-Well to original equipment
manufacturers even if the ultimate destination of the
Products is within the Territory.
(d) The Sales Representative shall not be entitled to
any compensation for its services pursuant to this
Agreement except as specifically set forth in this
Agreement. Commissions shall be due and payable to the
Sales Representative only when, and only to the extent
that, Mag-Well has received payment from the customer.
If the purchase of the Products should be rescinded,
revoked, or repudiated by the customer for reasons
beyond Mag-Well's control, by Mag-Well for breach of
contract by either the customer or Mag-Well for "force
majeure" reasons or reasons beyond Mag-Well's control,
or if the purchase order of the Products becomes
invalid or inoperative due to any government action or
regulation, the Sales Representative shall be entitled
to no compensation except to a pro-rata share of any
amount that Mag-Well may receive and retain as payment
for Products delivered to the Customer.
9.Limited Warranty
(a) Mag-Well warrants the Products to be free from
defects in material and workmanship under normal
acceptable use and service. This warranty shall be
effective for one year from the date of shipment of the
Product by Mag-Well.
(b) Mag-Well's sole responsibility under this warranty
shall be as to repair any defective Products or replace
them with new or re-manufactured Products, as Mag-Well
may elect, and, under the conditions specified below,
to pay transportation charges. Mag-Well shall have no
responsibility for transportation costs nor
consequential claims of any type, except as
specifically set out in the next paragraph.
(c) All warranty claims shall be submitted to Mag-Well
in writing with complete data on the nature of the
claim and the defect. The defective item or items
shall be returned to Mag-Well for inspection only after
receipt of written authorization from Mag-Well. If
return is so authorized and if Mag-Well determines that
a defect covered by this warranty exists,
transportation charges will be paid by Mag-Well.
(d) Except as specifically provided herein, MAG-WELL
EXPRESSLY DISCLAIMS ANY AND ALL OTHER EXPRESS OR
IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
10. Release
The Sales Representative hereby releases Mag-Well from
any and all claims, demands, contracts and liabilities,
except any indebtedness owing to the Sales Representative
based upon a written contract, existing at the date
hereof.
11. Term of Agreement
This Agreement shall continue in full force and effect
for an initial period of one (1) year with the first
renewal date on 23 May 2001.
(a) The parties may terminate this Agreement by mutual
consent given in writing.
(b) Either party may terminate this Agreement for any
reason, with or without cause, upon sixty (60) day's
written notice.
(c) Mag-Well may terminate this Agreement upon one day's
notice, oral or otherwise, if (i) the Sales
Representative attempts to assign this Agreement or any
right hereunder without Mag-Well's prior written
consent, (ii) there is a change in the control or
management of the Sales Representative which is
unacceptable to Mag-Well, (iii) the Sales
Representative ceases to conduct its operations in the
normal course of business, (iv) a receiver for the
Sales Representative is appointed or applied for, or if
the Sales Representative otherwise takes advantage of
any insolvency or bankruptcy law, (v) the Sales
Representative represents any other party such that, in
Mag-Well's opinion, it conflicts with the Sales
Representative's obligations under this Agreement, or
(vi) the Sales Representative breaches this Agreement
or acts in any manner which, in Mag-Well's opinion, is
detrimental to Mag-Well's best interest.
(d) Neither party hereto shall be entitled to any
penalties or any other payments (except for
compensation specifically payable hereunder the right
to which has been earned at the time of termination)
upon termination of this Agreement pursuant to the
terms hereof and the parties hereby waive the right
they might otherwise have to any such penalties or
payments.
(e) Any enhancement of Mag-Well's goodwill resulting
from efforts of the Sales Representative pursuant to
this Agreement shall be for the benefit of Mag-Well and
the Sales Representative shall not be entitled to any
compensation with respect thereto.
12. Breach of Agreement
In the event that either party fails to perform any part
of this Agreement, such partial breach shall constitute a
total breach of the Agreement, even though all other
conditions of this Agreement are performed and the other
party may thereupon terminate this Agreement upon written
notice. The failure of either party to enforce any
provision of this Agreement, regardless of how long such
provision remains unenforced shall not be deemed a waiver
of such provision or of the rights of such party to
enforce each and every provision of this Agreement.
13. Assignment
This agreement and the rights hereunder may not be
assigned by either party hereto without the prior written
consent of the other party. Any assignment made without
such consent shall be void.
14. Notice
Except as specified herein, any notice required to be
given by either party to the other under this Agreement
shall be in writing and shall be either given personally
or sent by postage prepaid registered mail, addressed to
the receiving party at the address shown herein, unless
written notice of such change of such address has been
received by the mailing party.
15. Controlling Law
This Agreement and any action undertaken pursuant hereto,
and the rights and obligations of both parties shall be
governed by and subject to the laws and regulations of
the United States and the State of Texas. Venue for any
legal action relating to this Agreement shall be Dallas
County, Texas.
16. Entire Agreement and Amendment
The foregoing constitutes the entire Agreement between
the parties hereto and superseded any prior written and
verbal agreements relating to the subject matter of this
Agreement. This Agreement may be modified or amended
only by a written instrument executed by both parties.
MAG-WELL, INC. ACC INGENIERIA Y SERVICIOS
ESPECIALIZADOS S.A. De C.V.
/s/William Dillard /s/ Celestino Aquine A.
By:William Dillard Jr. By:Celestino Aquine A.
Its: President Its:B.D. Manager
