EXHIBIT 10.12
DESA INTERNATIONAL
MANUFACTURER'S REPRESENTATIVE AGREEMENT
Agreement made on this 3rd day of March, 0000, xxxxxxx XXXX Xxxxxxxxxxxxx,
Xxxxxxx Xxxxx, Xxxxxxxx herein termed "Manufacturer" and:
NAME: Marketing Services Group, Inc.
ADDRESS: X.X. Xxx 00000
CITY: Xxxxxxx Xxxxx, XX 00000-0000
herein termed "Representative."
SECTION 1 RESPONSIBILITIES OF REPRESENTATIVE
Manufacturer grants Representative the right to solicit orders for the purchase
of Manufacturer's products (as listed in Section 2C) within Representative's
Area of Responsibility (Section 3). Representative agrees to extend best efforts
to achieve the Company's sales objectives for its products within
Representative's Area of Responsibility and to assist Manufacturer establish and
develop customer accounts in accordance with Manufacturer's policies.
Representative will search for qualified customer accounts, follow-up on
prospect leads furnished by Manufacturer, assist Manufacturer in developing
adequate parts and service support, execute an annual Customer Performance
Review on each account with Representative's Area of Responsibility, cooperate
with Manufacturer in developing territorial analysis and territorial objectives,
attend trade and dealer shows, conventions and sales meetings as directed by
Manufacturer. In addition to the foregoing, Manufacturer and Representative
shall have mutual responsibility for the communication and administration of
pricing adjustments, as they may occur.
SECTION 2 COMPENSATION, PAYMENT, PRODUCT & QUALIFYING ORDERS
(A) FEE - Manufacturer agrees to pay Representative in accordance with the
fee scale outlined in Appendix A of this document. The commission shall
be calculated based upon the stated sales price to the customer as of
the date the actual order is placed with the Manufacturer. Eligibility
for fee payment shall commence upon the effective date of this
agreement and continue through the last day that this agreement is in
effect. (There is not vested interest on the part of the Representative
in any unshipped order or orders.)
(B) PAYMENT - Manufacturer will pay Representative earned fees on a monthly
basis as orders are shipped. Should purchaser fail to pay for any part
of the invoice for any reason, the fee received by Representative for
the unpaid portion of the invoice shall be deducted from future fees
earned. (See Attachment 1). Manufacturer reserves the right to defer
payment of earned fees or a portion thereof to cover contingencies such
as uncollectible receivables, returns, samples, memo billed to
Representative, etc. Manufacturer will credit Representative with the
accumulated deferred earned fees to the extent of that not offset by
those contingencies listed above. Payment of accumulated, deferred fees
will be made during the month of March of each year.
(C) PRODUCT LIST - The term "Products" includes all current products,
including options and accessories as described below: Electric Chain
Saws for X.X. Xxxxxxxx account only. PFA and Gas Oil Fired Heaters.
Unvented Gas Heaters and all parts and accessories thereof. Powder
Actuated Tools and accessories. PowerFast Fastening Products.
(D) QUALIFYING ORDER - The term "Qualifying Order" applies to any order for
Manufacturer's Product accepted by Manufacturer that originates with
established accounts in Representative's Area of Responsibility and
orders from new accounts that
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originate in Area of Responsibility which are solicited by
Representative and accepted by Manufacturer and are shipped and
invoiced during the period that Representative is operating under the
terms of this agreement.
SECTION 3 REPRESENTATIVE'S ARE OF RESPONSIBILITY
(A) Manufacturer grants Representative the right to solicit orders for
Manufacturer's Products within the following geographic/customer
boundaries in accordance with Manufacturer's distribution and marketing
policies: X.X. Xxxxxxxx Co., McMaster Xxxx, Chicago, IL, C&H Distrs.,
Milwaukee, WI, Global Equip. Co., Mitchfield, NY, Specialized Mail
Order accounts, Xxxxxx X. Xxxxxxx & Son, Chicago, IL
(B) MARKETS
Representative understands that Manufacturer expects Representative to
solicit orders from the following primary account types:
As noted previously.
(C) EXCLUSIONS
The following accounts, markets, boundaries, etc. are excluded from the
Representative's Area of Responsibility. All other accounts. NOTE: Manufacturer
may sell or lease products of its manufacture covered by this Agreement direct
to governmental agencies and subdivisions thereof, and to non-retail buyers
without obligation to Representative.
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SECTION 4 ORDERING AND CANCELLATION POLICIES
Manufacturer has issued and shall continue to issue to Representative, from time
to time, price lists and sales bulletins. No order submitted to Manufacturer
through Representative's efforts shall become effective unless and until that
order is formally accepted by written notice to the customer from Manufacturer,
and Manufacturer, in its sole discretion, may refuse to accept any order.
Manufacturer reserves the right to condition shipments, upon agreement of
satisfactory arrangements for payment.
SECTION 5 WARRANTY BY MANUFACTURER
Representative understands and agrees that the only warranties which
Manufacturer extends to customers of Manufacturer's Products are Manufacturer's
standard Warranty against defective material and workmanship, as defined within
Manufacturer's written warranty statement and which is in effect at the time of
delivery to the first user. If Representative makes any other warranty (such as
by enlarging the scope or period of warranty or undertaking a warranty of
merchantability or fitness for any particular purpose) or any other obligation
whatsoever, Representative shall: (1) be solely responsible therefore; (2) have
no recourse against Manufacturer; and (3) defend, indemnify and hold
Manufacturer harmless against any claim of cause of action whatsoever arising
out of, or occasioned by, the Representative's extension of said additional
warranty or obligation.
SECTION 6 LIABILITY FOR DELAYS
No liability shall be attached to Manufacturer for direct, indirect incidental
or consequential damages or expenses due to loss, damage, detention, or delay in
delivery of Products resulting from acts or delays beyond its control.
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SECTION 7 USE OF NAMES, TRADE NAMES, AND TRADEMARKS
Representative agrees not to use Manufacturer's names including the name "DESA
or SWINGLINE" or any trademarks used in connection with Products, as part of the
corporate or business name of Representative, or in any manner which
Manufacturer considers improper, misleading or detrimental to Manufacturer's
interest. Upon termination of this Agreement, Representative shall cease to
operate as, or represent that Representative is, an authorized Representative of
Manufacturer and will refrain from any and all actions which would associate
Representative with Manufacturer. In addition, upon termination of this
Agreement, Representative will promptly remove all signs and other advertising
material or identifying marks that bear the name DESA or any other trade names
or trademarks of DESA International or any of its divisions or affiliate
companies from Representative's place of business, and thereafter Representative
shall not use such names and trademarks in any manner whatsoever, provided,
however, if Representative continues to be a Representative agreement, nothing
contained herein to the contrary shall prohibit Representative from exercising
any of his rights granted in such separate agreement.
SECTION 8 TERMINATION
This Agreement may be terminated by either party upon thirty (30) days prior
written notification sent to the other party or immediately by mutual consent.
Termination of this Agreement shall not release either party from payment of any
sum then owing to the other party at time of written notification of
termination, except as noted in Section 2A and 2D.
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Upon termination of this Agreement, Representative shall return unpaid samples,
all remaining promotional material, catalogs, price lists, bulletins, owner's
manual and current advertising material and other literature which was furnished
to Representative by Manufacturer.
SECTION 9 REPRESENTATIVE NOT AN AGENT
Nothing contained herein shall be construed as designating Representative as an
employee, agent or legal representative of Manufacturer. Representative is not
granted any authority to create an obligation or responsibility on behalf of
Manufacturer, or to bind Manufacturer in any manner whatsoever. Representative
shall be at all times an independent contractor.
SECTION 10 NO OTHER AGREEMENTS
This nonassignable Agreement supersedes any agreement existing at any time
between the parties and there are no agreements or understanding, either oral or
written, which conflict with, alter or enlarge, and the express terms hereof
control both course of dealing and usage of trade. Any modifications of this
Agreement must be in writing and approved by a duly authorized employee of
Manufacturer.
SECTION 11 CONFIDENTIAL INFORMATION
Representative understands that Manufacturer may, from time to time, disclose to
Representative certain confidential technical or business information relating
to the subject matter of this Agreement. Representative agrees to hold such
information in confidence and make no use or disclosure thereof, both during and
after the terms of this Agreement, except as authorized by Manufacturer. Upon
termination of this Agreement, Representative agrees to return to
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Manufacturer any written or printed matter or any other document furnished by
Manufacturer, and all copies thereof, in Representative's possession or control.
SECTION 12 DISCONTINUANCE AND MODIFICATION
Manufacturer may discontinue the manufacture of any product and make changes and
improvements at any time in the specifications, construction or design, of
Products without incurring any obligations to Representative.
SECTION 13 PERFORMANCE
No failure of Manufacturer to insist upon strict compliance with any provision
of this Manufacturer's Representative Agreement shall constitute waiver thereof
for the future, and all provisions herein shall remain in full force and effect.
The Representative will be given a performance evaluation every March on his
past performance. Measure of evaluation will be based on performance towards the
goals and objectives provided by the Manufacturer and agreed upon by the
Representative each January for the following year. An unsatisfactory
performance review can result in cancellation of this Agreement or the
Representative being retained on a probationary period for one year.
SECTION 14 APPLICABLE LAW AND INVALIDITY
This Agreement shall be construed,
enforced and performed in accordance with the laws of the State of Kentucky. All
provisions of this Agreement are severable and any provision determined to be
invalid under the applicable laws of any jurisdiction shall be deemed
inoperative as to such jurisdiction to the extent of such invalidity. without
invalidating any of the other provisions of this Agreement.
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DATE March 27, 1996 DATE November 5, 1996
DESA INTERNATIONAL Xxxxx X. Xxxxxx
MANUFACTURER REPRESENTATIVE
BY____________________________ Marketing Services Group, Inc.
OFFICER d/b/a
BY_______________________
AUTHORIZED SIGNATURE
---------------------------
Title, if any, specify
Proprietorship, Partnership
Corporation
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ATTACHMENT 1
BAD DEBT COMMISSION/HOLDBACK COMMISSION
I. There will be no regular holdback of commission to cover bad debts.
II. Commission is processed to the sales agency at the time of invoicing.
Therefore, commission is paid prior to collection of the Accounts
Receivable.
III. If an account is classified as a Bad Debt, whether the action is
initiated by DESA with collection or legal proceedings, or an act by an
Account of filing Bankruptcy, a reversal of the commission paid to the
sales agency, as related to the outstanding obligation, will be made to
the extent the Accounts Receivable is deemed uncollectible. Through the
proceedings of collection of a Bad Debt, where payments are recovered,
the appropriate rate of commission will be reinstated to the sales
agency on the net proceeds.
ATTACHMENT 2
PROCEDURE FOR BAD/DEBT COMMISSION
Commission is accrued and paid to the representative organizations at the time
of the invoicing process. If an account is classified as a bad debt, whether the
action is initiated by DESA with collection or legal proceedings or an act by
the account of filing bankruptcy, a reversal of the commission paid to the
representative organization as related to the outstanding obligation will be
made.
I. BAD DEBT
Classification of bad debt by DESA International.
* Account balances of $5,000 or less requires approval of the
Director of Credit.
* Account balances in excess of $5,000 requires approval of the
Director of Credit and Vice President of Finance.
Bankruptcy filings by an account
* Automatic classification to bad debt.
II. COMMISSION
In the month an account is classified as a bad debt:
1. A form will be generated by the Credit Department itemizing
the obligation and the corresponding amount of the
representatives commission.
2. All deductions of commission require approval of the Director
of Credit and the Vice President of Sales or his chosen
designate.
3. Any commission that has been rejected as a deduction requires
a written explanation approved by the Vice President of Sales
and Vice President of Finance.
4. The form once approved will be forwarded to Accounting to be
processed as a deduction to commission.
5. The appropriate journal entry to reverse the commission
expense will be made by accounting.
6. The representing organization is to receive a copy of the bad
debt commission form with their commission check.
III. PAYMENTS ON BAD DEBT ACCOUNTS
Through the proceedings of collection, legal or bankruptcy where
payments are recovered for the benefit of DESA International, the
appropriate rate of commission will be reinstated to the representative
agency on the net proceeds.
1. It is the responsibility of the Credit Department to document
the recovery and commission payable from the recovery.
2. Documentation to be forwarded to the Accounting Department for
journal entries to accrue and expense the commission.
3. The representative organization is to receive a copy of the
documentation of recovery with their commission check.
APPENDIX A
FEE
1. Commissions will be paid on the basis of 2.5% of shipments for X.X.
Xxxxxxxx for ALL product lines with the following exceptions:
a. Commissions will be paid on the basis of 5% for Grainger Chain
Saw shipments.
b. Commissions will be paid on the basis of 2.5% for Grainger
Generator shipments.
2. All Other Accounts:
a. 3.5% for Chain Saws
b. 3.5% for PowerFast products
c. 5% for Remington CPAT
d. 5% for Heating Products with the following exceptions:
a. 3.5% for all kerosene 35,000 BTU heating product
units.
b. 3% on Reddy Heater Heat Demon Tank Top Heating Units.
3. Parts: Commissions will be paid on the basis of 5% of replacement parts
to any authorized account.
From time to time, the Manufacturer may require a modification to the current
commission rate in order to meet market conditions and competitive issues. If a
revised rate is required, you will be notified prior to the finalization of the
business with the customer.
