1
EXHIBIT 10.4.7
--------------
DISTRIBUTOR AGREEMENT
---------------------
Effective August 20, 1990, the Brunswick Golf group of the Brunswick
Division, Brunswick Corporation, having a place of business at 000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 X.X.X. (hereafter referred to as
"BRUNSWICK") and Infinity Golf having a place of business at X.X. Xxx 000, Xxx
Xxxxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0, Xxxxxx (hereafter referred to as
"INFINITY GOLF") agree as follows:
ARTICLE 1. BACKGROUND
---------------------
BRUNSWICK is in the business of designing and manufacturing golf club
shafts. INFINITY GOLF desires to act as a distributor of certain of such shafts
in Canada.
ARTICLE 2. DEFINITIONS
----------------------
As used in this Agreement, the following terms, set forth in upper case
letters, shall have the meanings stated below, opposite each term:
2.1 PRECISION FM PRODUCTS -- BRUNSWICK's golf club shafts identified in
Appendix 1-A as available for purchase and sale by INFINITY golf under this
Agreement.
2.2 BRUNSWICK GOLF PRODUCTS -- BRUNSWICK's golf club shafts identified
in Appendix 1-B as available for purchase and sale by INFINITY GOLF under this
Agreement.
2.3 TERRITORY -- the geographical area described in Appendix 1-C.
2.4 BRUNSWICK GOLF PRODUCTS HOUSE ACCOUNTS -- Customers within the
TERRITORY directly served by BRUNSWICK and specifically identified in Appendix
1-D.
ARTICLE 3. AUTHORIZATION
------------------------
3.1 BRUNSWICK appoints INFINITY GOLF as its sole agent for the import
and sale of PRECISION FM PRODUCTS within the TERRITORY.
2
3.2 BRUNSWICK appoints INFINITY GOLF as its non-exclusive agent for the
import and sale of BRUNSWICK GOLF PRODUCTS to the HOUSE ACCOUNTS.
3.3 Orders for PRECISION FM PRODUCTS and BRUNSWICK GOLF PRODUCTS by
INFINITY GOLF shall be in accord with prices and terms established by BRUNSWICK.
Acceptance of any order shall be at the discretion of BRUNSWICK.
3.4 BRUNSWICK shall have the right to make modifications in PRECISION
FM PRODUCTS and BRUNSWICK GOLF PRODUCTS, and sales terms for PRECISION FM
PRODUCTS and BRUNSWICK GOLF PRODUCTS, upon thirty (30) days written notice to
INFINITY GOLF.
3.5 BRUNSWICK shall have the right to make modifications in TERRITORY
and HOUSE ACCOUNTS, upon one hundred twenty (120) days written notice to
INFINITY GOLF or upon written consent of INFINITY GOLF.
ARTICLE 4. ORDERS, PAYMENTS
---------------------------
4.1 For orders shipped to INFINITY GOLF for its stocking requirements
to meet the needs of its customers in the TERRITORY, INFINITY GOLF shall
purchase PRECISION FM PRODUCTS and BRUNSWICK GOLF PRODUCTS at the prices in
effect and accepted by BRUNSWICK pursuant to Article 3.3.
4.2 All payments made to BRUNSWICK shall be in United States Dollars.
Past-due payments (i.e., payments made more than forty-five [45] days after the
date of invoice) shall accrue interest at the prevailing prime rate of CITIBANK,
N.A., New York, plus five percent (5%), based on the rate in effect on the last
banking day prior to the date of accrual. Interest from the date of accrual
shall also be considered a past-due payment.
ARTICLE 5. SALES OBLIGATIONS -- INFINITY GOLF
---------------------------------------------
INFINITY GOLF shall use its best efforts to promote the sale of
PRECISION FM PRODUCTS and BRUNSWICK GOLF PRODUCTS, such as:
-2-
3
5.1 DILIGENT PROMOTION OF SALES -- execute a systematic program of
TERRITORY coverage and diligently pursue sales leads and orders.
5.2 SUPPLY OF INFORMATION -- provide BRUNSWICK with all useful
information relating to competitive products in the TERRITORY, product
requirements of customers, and potential applications of PRECISION FM PRODUCTS
and BRUNSWICK GOLF PRODUCTS.
5.3 SALES FORECAST -- provide BRUNSWICK with an annual sales forecast
for each PRECISION FM PRODUCT and BRUNSWICK GOLF PRODUCT.
5.4 CUSTOMER ASSISTANCE -- ensure that the customer is instructed in
the proper use of the PRECISION FM PRODUCTS and BRUNSWICK GOLF PRODUCTS and
provide additional assistance to aid customer in the maintenance of the
PRECISION FM PRODUCTS and BRUNSWICK GOLF PRODUCTS purchased.
5.5 MAINTENANCE OF UP-TO-DATE KNOWLEDGE OF PRECISION FM PRODUCTS AND
BRUNSWICK GOLF PRODUCTS -- attend sales meetings, read PRECISION FM PRODUCT and
BRUNSWICK GOLF PRODUCT information provided by BRUNSWICK.
5.6 MAINTENANCE OF SALES FORCE -- maintain a properly trained and
experienced sales force and facilities adequate to service customer needs.
ARTICLE 6. SALES OBLIGATIONS -- BRUNSWICK
-----------------------------------------
6.1 BRUNSWICK shall, without charge, provide INFINITY GOLF catalogs,
promotional materials, and samples deemed to be appropriate by BRUNSWICK.
6.2 BRUNSWICK will make reasonable efforts to promptly deliver all
orders submitted by INFINITY GOLF, provided that BRUNSWICK shall not be liable
for any failure or delay in delivery.
-3-
4
ARTICLE 7. WARRANTY OBLIGATIONS, HOLD HARMLESS
----------------------------------------------
7.1 A printed warranty is issued to the original purchaser of PRECISION
FM PRODUCTS and BRUNSWICK GOLF PRODUCTS. With respect to PRECISION FM PRODUCTS
and BRUNSWICK GOLF PRODUCTS purchased by and thereafter sold by INFINITY GOLF,
such warranty shall extend to INFINITY GOLF's original purchaser. No warranties,
other than such printed warranty, shall extend to PRECISION FM PRODUCTS and
BRUNSWICK GOLF PRODUCTS.
7.2 BRUNSWICK shall hold INFINITY GOLF harmless from all losses and
claims arising out of inherent defects in PRECISION FM PRODUCTS and BRUNSWICK
GOLF PRODUCTS existing at the time such PRECISION FM PRODUCTS and/or BRUNSWICK
GOLF PRODUCTS are shipped by BRUNSWICK, provided that INFINITY GOLF gives
BRUNSWICK immediate notice of any such claim and cooperates to all reasonable
extent with BRUNSWICK in the defense and settlement thereof. INFINITY GOLF shall
hold BRUNSWICK harmless from all claims arising out of INFINITY GOLF's or its
customers' modification of PRECISION FM PRODUCTS and BRUNSWICK GOLF PRODUCTS or
other abnormal uses or uses not in accord with BRUNSWICK's recommendations.
ARTICLE 8. PROTECTION OF BRUNSWICK's TRADEMARKS AND PROPRIETARY INFORMATION
---------------------------------------------------------------------------
8.1 INFINITY GOLF shall not use BRUNSWICK's or its parent's trade names
or trademarks in its business title and shall not otherwise use such tradenames
or trademarks except in connection with the promotion and sale of PRECISION FM
PRODUCTS and BRUNSWICK GOLF PRODUCTS and then only in accord with BRUNSWICK's
prior written approval. Upon termination of this Agreement, INFINITY GOLF shall
cease all use of such tradenames and trademarks.
ARTICLE 9. TERM
---------------
9.1 Either party may terminate this Agreement by giving written notice
to the other party, not less than one hundred twenty (120) days prior to the
date such termination is to become effective.
-4-
5
9.2 Either party shall have the right to terminate this Agreement, upon
a material breach by the other party. The aggrieved party shall initially notify
the other in writing, describing with particularity the nature of the breach as
it applies to the provisions of this Agreement. If the other party has not cured
the breach within thirty (30) days of such initial notice, the aggrieved party
may terminate the Agreement, effective seven (7) days from the dispatch thereof.
9.3 Either party may terminate this Agreement upon written notice to
the other in the event the other becomes insolvent, files a petition in
bankruptcy or in insolvency, or if such a petition is filed against it by its
creditors and is not removed within three (3) months.
9.4 Upon termination, rights granted to INFINITY GOLF shall terminate,
provided that such termination shall not affect any rights and/or obligations
which from the context thereof are intended to survive, such as INFINITY GOLF's
rights and/or obligations under Articles 4.2, 7.1, 7.2, 8, 9.7, 10.3 and 10.6.
9.5 Expiration or termination shall not: (a) preclude INFINITY GOLF
from selling PRECISION FM PRODUCTS and/or BRUNSWICK GOLF PRODUCTS already in its
possession, to third parties; or (b) obligate BRUNSWICK to repurchase any such
PRECISION FM PRODUCTS and/or BRUNSWICK GOLF PRODUCTS from INFINITY GOLF.
9.6 Upon termination, neither party shall be liable to the other for
any losses of prospective profits or earnings, or any other loss or other
compensation arising as a result of such termination.
9.7 Upon termination, INFINITY GOLF shall provide BRUNSWICK with a
listing of all customer orders outstanding for delivery within a period of not
more than one hundred and eighty (180) days from the date of notice of
termination and a listing of PRECISION FM PRODUCTS and BRUNSWICK GOLF PRODUCTS
on hand in inventory. BRUNSWICK shall proceed with due diligence to deliver to
INFINITY GOLF any and all PRECISION FM
-5-
6
PRODUCTS and BRUNSWICK GOLF PRODUCTS contained in the said orders required by
INFINITY GOLF to meet the ship dates specified and shall not, whether for its
own account or jointly with others, alter any of the said orders or ship dates
without the mutual consent of INFINITY GOLF and the customer.
ARTICLE 10. MISCELLANEOUS PROVISIONS
-------------------------------------
10.a ASSIGNMENT -- This Agreement shall be binding upon and inure to
the benefit of the successors of the respective parties hereto, provided that
this Agreement shall not be assigned by INFINITY GOLF without the consent of
BRUNSWICK.
10.2 ENTIRE AGREEMENT -- This Agreement sets forth the entire agreement
between the parties and supercedes all prior discussions between them as to the
subject matter hereof.
10.3 ARBITRATION AND GOVERNING LAW -- In the event the parties are
unable to settle a dispute arising out of or in relation to this Agreement, such
dispute shall be settled under the rules of Conciliation & Arbitration of the
International Chamber of Commerce by three impartial arbitrators appointed in
accord therewith. Such arbitration shall be conducted in Toronto, Canada, and
the interpretation of this Agreement shall be governed by the laws of the State
of Illinois, U.S.A. The arbitration award shall be final, and judgement thereon
may be intered in any court having jurisdiction thereof.
10.4 NEGATION OF WAIVER -- Any failure of BRUNSWICK to enforce any of
the terms of this Agreement shall not constitute a waiver of BRUNSWICK's right
to strictly enforce such provisions in the future.
10.5 NEGATION OF AGENCY -- Nothing contained herein shall be construed
that either party is a partner or agent of the other, and neither party shall in
any way pledge the other's credit. INFINITY GOLF is not authorized to otherwise
bind BRUNSWICK to any agreement or to make collections without BRUNSWICK's
specific authorization.
-6-
7
10.6 NON-COMPETITION -- During the term of this Agreement and for one
(1) year thereafter, INFINITY GOLF shall not, whether as principal or agent, or
whether for INFINITY GOLF's own account or jointly with others, solicit orders
or sell any products in the TERRITORY as Frequency Matched products other than
PRECISION FM PRODUCTS.
10.7 FORCE MAJEURE -- Failure in performance of any obligation assumed
hereunder by either party shall not be deemed a breach of this Agreement, if
such failure arises from a cause beyond the control of such party. The party
failing to perform as a result of such "Force Majeure" shall (i) promptly inform
the other as to such cause(s) and (ii) make a good faith attempt (taking into
account cost to party failing to perform) either to remove such cause(s) or to
utilize reasonable alternatives to effect equivalent performance.
ARTICLE II. NOTICE
------------------
All notices and reports required to be given hereunder shall be deemed
to have been properly given as of the date of the dispatch thereof, if sent by
registered airmail, addressed if sent to BRUNSWICK as follows:
Brunswick Golf
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
X.X.X.
Attention: Director, Marketing
or if sent to INFINITY GOLF as follows:
Infinity Golf
P. O. Box 000
Xxxx Xxxxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Xxxxxx
or to such other address of which either party has notified the other in
writing.
-7-
8
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and to be effective as of the day and year first above written.
BRUNSWICK CORPORATION
BRUNSWICK DIVISION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Title: Director of Marketing
INFINITY GOLF
By: /s/ Xxxx Xxxxx
---------------------------
Title: President
By:
---------------------------
Title:
------------------------
-8-
9
APPENDIX - I
------------
A. PRECISION FM PRODUCTS - Shafts which have been frequency matched using a
frequency analyzer, including those identified
as PRECISION FM, PRECISION FW, PRECISION MW, and
PRECISION FIBREMATCH.
B. BRUNSWICK GOLF PRODUCTS - All BRUNSWICK shafts other than PRECISION FM
PRODUCTS.
C. TERRITORY - All the provinces of Canada.
D. HOUSE ACCOUNTS - Sportsline International, Ltd.
Xxxxxxx X. Xxxxxx Associates
Torkos Brothers
Cosmo Golf
-9-
