EXHIBIT 10.136
[EXPLANATORY NOTE: THIS IS AN AMENDMENT TO THE ORIGINAL AGREEMENT
EXECUTED JULY
25, 2003. ON AUGUST 27, 2003, THE PARTIES AMENDED THE AGREEMENT BY
SUBSTITUTING
A NEW VERSION OF THE FIRST PAGE OF THE AGREEMENT WITH THE REVISED
PARAGRAPH 1
AND SIGNING THE RIGHT MARGIN OF PARAGRAPH 1.]
HiENERGY TECHNOLOGIES, INC.
INTERNATIONAL DISTRIBUTION AGREEMENT
HiENERGY TECHNOLOGIES, INC.
PH:
949.757.0855
1601 ALTON PARKWAY, UNIT B
FAX: 949.757.1477
IRVINE, CA 92606
This AGREEMENT, dated as of the 25th day of July, 2003 , between
HiENERGY
TECHNOLOGIES, INC., a Delaware USA corporation. (hereinafter called
"Company")
and Electronic Equipment Marketing Company (EEMCO), a corporation
duly
registered in Riyadh, Saudi Arabia (hereinafter called
"Dealer").
This consideration of the mutual promises herein contained, it is
agreed as
follows:
1. SCOPE OF AGREEMENT
Dealer agrees to act as a Dealer of Company on a exclusive basis
and in that
capacity Dealer shall purchase for resale or arrange for the sale
of car bomb
detection products and services provided by Company of a type
listed as follows:
HiEnergy CarBomb Finder Beta-models 301, 302, and 303 (such
products and
services hereinafter called the "Products"), within the territory
described as
follows: Kingdom of Saudi Arabia Land Forces, Signal Corps, RSAF,
Ministry of
Interior and Navy AND the Middle-East countries of Saudi Arabia, ,
Kuwait,
Qatar, Bahrain, Oman, UAE, Iraq, Yemen, Jordan, and Lebanon AND
North African
countries of Sudan, Egypt, Morocco, Tunis, Algeria, and Mauritania
(hereinafter
called the "Territory"), in accordance with the terms and
conditions set forth
in this Agreement. Company will sell to Dealer, or on Dealer's
order as herein
set forth.
/s/ Bogdan C. Maglich
/s/ Meqbil Al Tamimi
8/27/03
2. DEALERS OBLIGATIONS
a. The Dealer agrees to promote the sale of the Products in the
Territory
aggressively; to contact all potential users and customers and to
sell as large
a quantity as possible; to avoid transactions which might call upon
Company to
accept obligations inconsistent with Company's terms and conditions
of sale or
at unreasonable prices; to refrain from representing, promoting,
selling, or
arranging to sell products, accessories, or lines competitive with
the Products
in the Territory within the term hereof; and to avoid any and all
activity
inconsistent with the foregoing.
<PAGE>
b. Dealer will maintain a sales organization, conduct promotional
activities,
advertise and distribute promotional material as may be mutually
agreed upon
from time to time.
c. Dealer will supply Company with the resale prices for the
Territory and will
provide assistance in contract negotiations if and when orders are
placed by
Dealer for direct contracting by Company with Dealer's
customers.
d. Dealer agrees to actively work on and use all reasonable efforts
in securing
the release of bid bonds, performance bonds, bank letters of
guarantee and
customer holdbacks in connection with orders placed by Dealer, or
directly by
customers with Company.
In the event that the Dealer requires Company's assistance in
securing the
releases of the above, Company will provide Dealer with reasonable
support and
assistance in securing any such releases. In such event Dealer and
Company with
mutually agree upon cost sharing for such assistance.
e. In situations where Company is selling directly to a foreign
government or
government agency, Dealer will not represent Company unless Dealer
warrants to
Company that neither Dealer nor any employee or sub-agent of Dealer
holds an
official position with said government or government agency.
f. In order to further promote and support the sale of the
Products, Company
may, from time to time, wish to provide technical, marketing, or
other support
in the Territory to assist the Dealer organization in such
activities. It is
envisioned that such support by Company shall be provided on a cost
sharing
basis, to be mutually determined on a case-by-case basis.
g. In certain situations, in addition to the normal
responsibilities set forth
above, Company may direct Dealer to perform additional services
such as
assisting in market surveys; providing maintenance or technical
services,
support and assistance; assisting Company personnel traveling in
the Territory;
reviewing and editing sales literature for suitability in the
Territory; and/or,
providing reasonable assistance to customers not within Dealer's
Territory as
defined herein. Dealer agrees to provide such additional services
or assistance,
for which Dealer may request reasonable compensation for such
services or
assistance.
3. PRICES AND DISCOUNTS
a. Prices to Dealer shall be Company's suggested international list
prices, less
international discounts, as may be established by Company from time
to time.
Prices and discounts currently in effect have heretofore been
conveyed to Dealer
(Appendix A),
b. For installation, or special products, services or projects
where no
suggested list prices or discounts are available, Company shall
quote to Dealer
the prices to be received by Company net of any discounts or
allowances, and
such prices quoted to Dealer shall apply as between HiEnergy and
Dealer
regardless of whether Company sells to Dealer, or receives an order
directly
from a customer of Dealer, and regardless of the price quoted to,
or agreed on
by contract with, such customer.
c. Dealer shall establish prices to customers and, in case of
direct contract
between Company and a customer or Dealer, Company shall quote to
Dealer's
customer the prices so established by Dealer. Dealer's discount
shall be reduced
if prices to such customer are below Company's suggested
international list
prices, it being understood that Dealer shall receive from any
payments from the
customer only the excess over the net prices due to Company.
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<PAGE>
4. ORDERS AND ACCEPTANCE
All orders and contracts shall be forwarded to Company at its
office in the
United States at the address specified herein. Company reserves the
right in its
sole discretion to accept or reject any such order or contract, and
normally
will not accept unless specifications, terms of payment,
deliveries, terms and
conditions, credit and shipping arrangements are satisfactory to
Company. Except
as otherwise agreed in writing, terms and conditions of sale,
warranties,
express or implied, and provisions for damages shall be limited as
set forth in
Company's Standard Terms and Conditions of Sale in effect at date
of order
applicable to the Products.
5. PAYMENT
a. Payment of the price due Company shall be made in U.S. dollars
by a letter of
credit acceptable to Company, payable in sixty (60) days from the
date of
shipment against normal shipping documents at a United States bank.
Advance
payments or letters of credit from Dealer's customer may be
accepted if the
amount due Company or the full resale price is payable to Company,
or to an
independent bank or escrow holder satisfactory to Company which
guarantees
payment to Company upon its order of the net amount due Company.
Any balance due
Dealer from Company or any such bank or escrow holder shall be
remitted to
Dealer in accordance with the escrow agreement or as mutually
agreed upon.
b. Company may hold back or retain payments due Dealer, or any
portions of
Dealer's discount, in an amount necessary to offset Company's
exposure for
bonds, guarantees, and customer payment retention which are
outstanding.
c. Dealer will reimburse Company for all fees and expenses incurred
by the
Company in the said Territory, including cable and confirmation
fees incurred by
Company in connection with posting, filing, and maintenance of
bonds and letters
of credit and letters of guarantee.
6. WARRANTY
Until otherwise stated, Product shall be sold as a beta-model and
not be
warranted by Company unless defect occurs prior to delivery or can
be determined
to be a preexisting fault particular to the single unit in
question. This
warranty shall not apply to any defect, failure or damage caused by
improper use
or improper or inadequate care. Company shall not be obligated to
provide
service under this warranty if:
a)
Damage has been caused
by a failure to make a full and proper
inspection of the Product (as described by the documentation
enclosed
with the Product at the time of shipment) on initial receipt of
the
Product following shipment;
b)
Damage has been caused
by the attempts of individuals, other than
Company-certified staff, to repair or service the Product;
c)
Damage has been caused
by the improper use or a connection with
incompatible equipment or product including software
applications.
This limited warranty on defects shall remain valid for a period of
twelve (12)
months beginning on the day of installation/acceptance of Product.
Company shall
replace such defective equipment or parts at no cost to buyer,
inclusive of
freight/customs, etc. Service and maintenance will be provided by
the Dealer for
beta-models at the expense of the buyer, unless otherwise specified
or agreed
upon at time of purchase or thereafter, given the proper amendment
is made to
Company's Standard Terms and Conditions of Sale and agreed on by
all parties.
Any disputes concerning the warranty shall be settled according to
the
APPLICABLE LAW/DISPUTES subsection of this Agreement.
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<PAGE>
7. COSTS AND EXPENSES
Dealer shall bear all its own costs and expenses, including without
limitation
all costs, fees, discounts, wages and salaries of any employees,
agents,
sub-agents or experts, except as otherwise specifically authorized
in advance in
writing by a duly authorized official of Company. Company's prices
do not
include, and Dealer shall pay or cause to be paid, any and all
expenses within
the territory related to sales taxes, any other
