EXHIBIT 10.26
SUPPLY AGREEMENT
DESA INDUSTRIES OF CANADA INC.
AND
H.D. XXXXXX MANUFACTURING COMPANY
APPENDIX (I)
Exception to the "Direct Ship Commission" is Costco, for which a
commission on net sales of 6% is payable.
H.D. XXXXXX MANUFACTURING COMPANY
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made November 15, 1995 between H.D. Xxxxxx
Manufacturing Company, incorporated under the laws of the State of Minnesota,
having its principal office at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 ("Manufacturer") and Desa Industries of Canada Inc., at 0000 Xxxxxxxxx
Xxxx, Xxxx #0-0; Xxxxxxxxxx, Xxxxxxx, Xxxxxx X0X0X0 ("Master Distributor")
IT IS MUTUALLY AGREED THAT:
1. Purpose of Agreement
Manufacturer hereby appoints Master Distributor, and Master Distributor
hereby agrees to act for Manufacturer as its exclusive Master Distributor in the
Territory, to the Markets, for the Products, as hereinafter defined.
2. Statement of Relationship
a. It is understood that each party recognizes the other as
free and independent, and shall exercise no control over the other except as set
forth in this Agreement.
b. This Agreement may be amended, changed, or revised only in
writing by duly authorized officers of both parties hereto.
c. The Master Distributor shall call on, service, sell, and
collect payment from all distributors and dealers within the said territory and
markets.
d. The Manufacturer shall produce, or provide product to the
Master Distributor, in a timely manner as specified by the Master Distributor in
the periodic forecasts furnished by the Master Distributor.
3. Duration of Agreement
a. This Agreement shall remain in force until July 1, 1997.
Thereafter, it shall automatically renew for successive 1 year terms until
terminated by either party in accordance with Paragraph 8, "Termination."
4. Territory
The term "Territory as used in this Agreement is defined to mean The
entire country of Canada.
Manufacturer will resolve any questions regarding the
Territory.
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5. Market
a. The term "Exclusive Markets" as used in this Agreement is
defined to mean, in certain Exclusive Markets the Master Distributor will be the
only Master Distributor used by the Manufacturer for the resale of its products
within that market.
Manufacturer will resolve any questions regarding the Market.
6. Products
a. The term "Products" as used in this Agreement is defined to
mean all Xxxxxx sprayer products listed in our catalog's price list #'s 80166DN,
and 80206DN.
b. The ownership of all Products will be transferred to the
Master Distributor upon shipment of the goods by the Manufacturer.
Manufacturer will resolve any questions regarding the
Products.
7. General provisions
a. Master Distributor shall maintain adequate facilities
within the Territory and shall provide competent personnel who will apply their
best effort to provide sales coverage and service satisfactory to the
Manufacturer.
b. It is understood that the Master Distributor represents
other Manufacturers. However, the Master Distributor will not represent any
other Company whose products the Manufacturer considers competitive with its
products, except by mutual agreement.
c. The Master Distributor shall pay all its expenses and be
solely responsible for the acts and expenses of its employees.
d. The Master Distributor shall have no authority to incur
debts, make purchases, or enter into contracts on behalf of the Manufacturer.
e. The Master Distributor shall provide Manufacturer with
periodic sales forecasts and other information required by the Manufacturer
relating to the sale of Products to Market within the Territory.
f. The Master Distributor shall not list the Manufacturer's
name or show the Manufacturer's name in any directory such as telephone, trade,
business or shoppers guide or in any other manner which could render the
Manufacturer liable for the Master Distributor's taxes, debts, or other
obligations.
g. The Manufacturer shall establish and have exclusive control
over all prices, discounts, allowances, specifications, and the terms governing
the sales of Products to the Master Distributor.
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h. All price discounts, allowances, specifications, and terms
are subject to change without notice, at the sole discretion of the
Manufacturer.
I. All credits and/or returns of product shall be according to
the Manufacturer's policies then in effect.
j. Full responsibility for credit risk and collections rest
with the Master Distributor.
k. The Manufacturer shall furnish the Master Distributor, cost
free, an amount of sales literature, demonstrator samples, catalog pages, and
other material which the Manufacturer, in its sole discretion, deems necessary
for promoting the sales of products. Such literature, samples, pages, and
material remains the property of the Manufacturer, and any and all that are
reusable shall be returned to the Manufacturer upon request. Demonstrator
samples shall be accounted for by the Master Distributor, and the Manufacturer
may, at its sole discretion, render invoices to the Master Distributor, and the
Master Distributor agrees to pay for lost, damages, or misused Demonstrator
samples.
8. Termination
a. Either party may terminate this Agreement for breach by the
other party by giving written Notice of Termination specifying such breach to
the other party at least fourteen (14) days prior to the effective date of
termination, provided that the breaching party fails to cure said breach within
fourteen (14) day period.
b. Either party may terminate this Agreement without cause by
electing not to renew it pursuant to paragraph 3, above, by giving written
Notice of Election Not to Renew to the other party at least ninety (90) days
prior to the end of the original, or any successive one (1) year, term.
c. Any partial termination of, or adjustment in, Territory,
Market, or Products shall be at the discretion of the Manufacturer, and shall be
subject to the same terms and conditions as if the entire Agreement were
terminated.
d. Any Notice shall be sent by Certified Mail. The day of
mailing shall be deemed the date notice is given. The effective date of
termination shall be specified in the Notice.
9. Laws Governing
a. The laws of the State of Minnesota shall apply and bind the
parties in any and all questions arising hereunder, regardless of the
jurisdiction in which any action or proceeding may be initiated or maintained.
However, if any of the provisions of this Agreement in any way violate or
contravene the laws of any state or territory, such provisions shall remain in
full force and effect.
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b. The failure of either party to enforce at any time, or for
any period of time, the provisions of this Agreement shall not be construed as a
waiver of such provisions, or of the right of such party thereafter to enforce
each and every such provision.
MANUFACTURER:
H.D. XXXXXX MANUFACTURING
COMPANY, INC.
Dated:_____________, 199_ By
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Its
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MASTER DISTRIBUTOR
Desa Industries of Canada Inc.
Dated:_____________, 199_ By
-------------------------------
Its
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H.D. XXXXXX MANUFACTURING COMPANY
DISTRIBUTION AGREEMENT WITH MASTER DISTRIBUTOR
ADDENDUM TO DISTRIBUTION AGREEMENT
1. THE FOLLOWING PROVISIONS are hereby added to Paragraph 5 of the
Distribution Agreement (agreement):
a. The following markets listed in part (b) below, are each a
part of the Master Distributors Exclusive Market and Territory. Each and every
market segment is expected to be serviced per the terms of this contract. Any
market area not properly serviced could be deemed as breach of this contract.
b. The term "Market" as used in this Agreement is defined to
mean the channels of distribution characterized by the Standard Industrial
Classification (SIC):
Consumer Markets (SIC) codes: 5072-Hardware Wholesale; 5083-Farm &
Garden Wholesale; 5211-Lumber & Building Materials Resale; 5231-Paint,
Glass & Wallpaper Retail; 5251-Hardware Retail; 0000-Xxxxxx Xxxxxxx &
Xxxxxx; 0000- Xxxxxxxxxx Xxxxxx; 5331-Variety Stores; 5399-Misc.
General Merchandise Stores, Grocery Stores.
Construction/Industrial Markets (SIC codes; 5039-Construction Materials
wholesale; 5081-Commercial equipment Wholesale; 5082-Construction and
Mining Machinery Wholesale; 5084-Industrial & Safety Machinery &
Equipment Wholesale; 5085- Industrial Supplies Wholesale;
5086-Professional Equipment Wholesale.
Janitorial & Sanitation Supply Markets (SIC) codes; 5087-Service
Establishment Equipment & Janitorial Supplies Wholesale; 7217-Carpet &
Upholstery Cleaning; 7349-Janitorial and Cleaning Services and
Supplies; 7342B-Deodorizing and Disinfecting Services.
c. The following market segments are excluded from the Master
Distributors market and territory:
Green Industry & Pest Control Markets (SIC) codes: 78204-Landscape
Contractors, 78302-Landscape Nursery, 18101 & 503924-Green House,
734201-Pest Control, 78209 & 00000-Xxxx Xxxxx, 78206-Lawn Maintenance,
78398, 78301 & 78205-Tree Care, 799706 & 799201-Golf Course, and
734208-Insect Spraying.
2. FREIGHT
a. The Master Distributor shall pay all freight costs incurred
from the purchase of Xxxxxx products. Freight will be F.O.B. Hastings, MN.
3. PAYMENT TERMS
a. The payment terms allowed on all Xxxxxx products will be
Net 30 days from the date of invoice, F.O.B., Hastings, MN.
4. COMMISSIONS
a. Any distributor or dealer not wishing to do business with
the Master Distributor may at the disgression of the Manufacturer do business
directly with the Manufacturer. If this situation arises the Manufacturer will
pay the Master Distributor a commission on all sales to the distributor or
dealer in question. The commission payable to the Master Distributor shall be
mutually agreed upon by both the Manufacturer and the Master Distributor, and
will be paid on all Whole Goods, parts and accessors xxxx to the established
distributor or dealer in the Master Distributor's territory.
5. PRICING DISCOUNTS
a. Pricing to the Master Distributor is termed "Desa Transfer
Price" is furnished periodically by the Manufacturer. It then becomes a integral
party of this contract.
6. The MANUFACTURER reserves the right to directly solicit (not through
the Master Distributor) orders from Federal, State, and local governments,
agencies, and subdivisions.
MANUFACTURER:
H.D. XXXXXX MANUFACTURING
COMPANY
Dated:____________, 199_ By
---------------------------------
Its
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MASTER DISTRIBUTOR:
Desa Industries of Canada, Inc.
Dated:_____________, 199_ By
---------------------------------
Its
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