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10.9 PH GROUP INC. AGREEMENT WITH MAJOR SALES REPRESENTATIVE
PH HYDRAULICS XXXXXXXXX ST. XXXXXXXX PRESS
PH GROUP INC.
AGREEMENT WITH SALES REPRESENTATIVE
THIS AGREEMENT is made between PH Group Inc. with its office in Columbus, Ohio
(hereinafter called the "Company") and Xxxxxx Associates with its office in
Columbus, OH (hereinafter called the "Agent").
In consideration of the mutual agreements hereinafter set forth and the terms of
that certain letter from the Company to Agent dated January 2, 1998, a copy of
which is attached hereto and incorporated herein by reference, which the parties
acknowledge and agree is valuable and sufficient consideration for their
respective obligations hereunder, the parties intending to be legally bound,
hereby agree as follows:
1. APPOINTMENT. The Company hereby appoints the Agent as the exclusive
authorized representative for the products specified in Schedule A,
attached, in the specific territory defined as per attached Schedule C
(the "Territory").
2. NON-COMPETE. During the term of this Agreement, and any renewal term,
Agent agrees that he will not, directly or indirectly, market, sell or
distribute any hydraulic presses, whether inside or outside the Territory,
other than those manufactured by the Company or any affiliate or
subsidiary without the written consent of the Company. This provision
shall survive any early termination of this Agreement except by mutual
agreement of the parties.
3. AGENT'S RESPONSIBILITIES AND FACILITIES. The Agent agrees that it will:
a) Use its best efforts to develop business to promote the sale of, and
to sell the products covered by this Agreement at commission rates
specified in Schedule B, attached.
b) Maintain a sales organization which actively solicits the sale of
products covered by this Agreement.
c) Include a representative listing of the products covered by this
Agreement in any catalogues issued by it.
PH GROUP, INC.
PH HYDRAULICS XXXXXXXXX
ST XXXXXXXX PRESS
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d) Furnish the Company from time to time, upon request, with such
information and reports as it may have available for its records
with respect to sales and other activities under this Agreement.
e) Cooperate with the Company in its regional marketing programs,
including advertising, product services and market research.
4. SALES ASSISTANCE BY COMPANY. The Company recognizes the benefits derived
by both parties through the active promotion of the Agent's name and
facilities in connection with the Company's products. To further this
objective, the Company agrees to furnish the Agent with sales promotional
aids, such as a sales plan, circulars, advertising and assistance.
5. AGENT - COMPANY RELATIONSHIP. The Agent shall have no right and shall not
attempt to enter into contracts or commitments in the name or on behalf of
the company or to bind the Company in any respect whatsoever.
6. PROPRIETARY AND TRADE SECRET INFORMATION. The Agent recognizes and
acknowledges that the methods of design, manufacturing, distribution,
or, lists and address or telephone information of actual or potential
customers, ordering patterns and preferences or design specifications
of customers, pricing information and strategies, advertising or
promotional materials, product design or specifications, marketing,
price lists, and any information relating to any bids, quotes or
orders, any patents, trademarks, trade secrets, proprietary information
and other intellectual property rights of the Company, including all
videos or recordings used for purposes of advertising, or marketing
(collectively "Confidential Information") as the same may exist from
time to time, are valuable, special and unique assets of Company. The
Agent specifically acknowledges that such Confidential Information has
independent economic value and is not generally known to individuals
outside Company. The Agent shall not, during or after the term hereof,
disclose, directly or indirectly, any such Confidential Information to
any person for any reason whatsoever or use any such Confidential
Information, directly or indirectly, for his own benefit or the benefit
of others. The Agent recognizes that he holds all Confidential
Information in a fiduciary capacity for the benefit of Company and that
in such capacity has a duty to take appropriate measures to safeguard
such information and preserve its confidentiality. Agent acknowledges
that the Company has implemented all reasonable and necessary
procedures for the protection of such Confidential Information and
agrees to comply with such procedures. During the term hereof, at the
close or completion of his work for Company, or any subsequent time,
upon request, the Agent will promptly return to Company all of its
property, which property includes notes, data and records relating to
Confidential Information in whatever form they exist and by whomever
prepared, which are then in Agent's possession, custody or control. The
provisions of this Section 6 will survive the termination hereof and
remain in full force and effect.
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7. TRADE MARKS. The Agent shall not use directly or indirectly, in whole or
in part, any trade xxxx or trade name that is or may hereafter be owned by
the Company in any way in connection with the Agent's business, except in
the manner and to the extent that the Company may specifically consent in
writing.
8. CHANGES. Although the Company will endeavor to give the Agent thirty (30)
days advance notice of any price reductions, it shall at all times have
the right, either with or without advance notice, to change prices, terms,
and conditions applicable to the purchase to its products under this
Agreement as set out from time to time in the prices or terms and
conditions provided to the Agent.
9. DURATION AND TERMINATION. The term of this Agreement shall commence on
the date hereof and continue for a two year period from the date hereof
This Agreement shall renew automatically for additional one year
periods upon the expiration of each succeeding term, upon the same
terms and conditions that apply during the initial term unless either
party shall give written notice to the other that such party does not
desire to renew this Agreement. Such notice must be given no later than
90 days before the expiration of then current term. Notwithstanding the
foregoing, this Agreement may be terminated by mutual agreement of the
parties. The Company may terminate this Agreement immediately upon
written notice if
(a) the Agent assigns or attempts to assign this Agreement, or any
rights hereunder, without the Company's prior written consent,
(b) there is a change in the control of management of the Agent's
employer or agency which is unacceptable to the Company,
(c) an indebtedness owed to the Company by the Agent becomes more than
thirty (30) days past due,
(d) the Agent ceases to function as a going concern, or to conduct its
operations in the normal course of business,
(e) a receiver for the Agent is appointed, or applied for, or a petition
under the Federal Bankruptcy Act is filed by or against the Agent,
or the Agency makes an assignment for the benefit of creditors, or
(f) the Agent at any time fails to perform any of the obligations on his
part to be performed hereunder.
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10. NO LIABILITY FOR TERMINATION. Neither the Company nor the Agent shall by
reason of the termination of the Agreement be liable to the other for
compensation, reimbursement, or damages either on account of present or
prospective profits on sales or anticipated sales, or on account of
expenditures, investments or commitments made in connection therewith or
in connection with the establishment, development or maintenance of the
business or goodwill of the Company or Agent, or on account of any other
cause of thing whatsoever, provided, however, that such termination shall
not affect the rights or liabilities of the parties with respect to
products previously sold hereunder or with respect to any indebtedness
then owing by either party to the other. Notwithstanding the foregoing,
this Section shall in no event limit a party's liability arising out of or
relating to a breach of this Agreement.
11. FAILURE TO ENFORCE. The failure of either party to enforce at any time or
for any period of time any of the provisions of this Agreement shall not
be construed as a waiver of such provisions or of the right of the party
thereafter to enforce each and every such provision. Any waiver or
modification of the provisions of the Agreement must be in writing and
signed by a duly authorized representative of the Company.
12. COMMISSION SPLIT. Commissions will be paid on the following basis:
- 25% Origination of RFQ
- 25% Specification review
- 25% Purchase Order
- 25% Ship To
If there are no established reps in the ship to area, then the 25% ship to
will be deducted from the commission.
All commission splits are left to the discretion of the Company. Any
objections by the Agents involved shall be in written form.
13. EFFECT AND MODIFICATION. This instrument contains the entire and only
agreement between the parties respecting the sale of the products referred
to in Paragraph 1, hereof, there being merged herein all prior and
collateral representations, promises and conditions in connection with
said matter.
14. INJUNCTIVE RELIEF. In the event of a breach or a threatened breach by
Agent of Sections 2 or 6 of this Agreement, Agent acknowledges that the
Company will suffer irreparable harm and that Company will be entitled to,
in addition to any other remedies available to the Company, a permanent
injunction in order to restrain Agent and any person or entity directly or
indirectly acting with him or for him from breaching any provisions of
Sections 2 or 6 of this Agreement.
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15. Neither party to this Agreement may assign, directly or indirectly, by
operation of law or otherwise, any right nor delegate any obligation under
this Agreement without the written consent of the other party. Any
purported assignment or delegation is void and ineffective to transfer any
right or delegate any obligation.
XXXXXX ASSOCIATES PH GROUP INC.
/s/ Xxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxxx
Xxxx Xxxxxx Xxxxxxx X. Xxxxxxx
President
EFFECTIVE DATE: 1-8-98 EFFECTIVE DATE: 0-0-00
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XXXXXXXX X
XXXXXXXXX XXXXXXXXX
Xxxxxxxxx defined as States of
Southern Ohio
Kentucky
Indiana
Illinois
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PH Hydraulics
SCHEDULE A
TYPE PRESS SERIES
1. Open Gap OGF
2. Open Gap Platen OGP
3. Straightening S
4. Four Column 4C
5. Bench Air Presses AP
6. Phoenix PHN
7. Marathon OGM
8. Specials SPEC
SCHEDULE B
1. Open Gap 10%
2. Open Gap Platen 10%
3. Straightening 10%
4. Four Column 10%
5. Bench Air Presses 10%
6. Marathon 10%
7. Specials As negotiated
8. Phoenix: PHN-2 10%
PHN-4 10%
PHN-8 10%
PHN-12 10%
It must be clearly understood by the Agent that there may be competitive
situations where the Agent may have to accept a lower commission rate to get the
order.
