EXHIBIT 10.23
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NON EXCLUSIVE DISTRIBUTION AGREEMENT
THIS AGREEMENT entered into on this August 5, 2002 (the "Effective
Date") between PalWeb Corporation, an Oklahoma corporation (the "Company") and
Bosh Material Handling Incorporated (hereafter referred to as "Bosh or Non
Exclusive Distributor").
RECITALS
WHEREAS, the Company has determined that in view of the Bosh's
professional knowledge, expertise and experience, Bosh's services as a Non
Exclusive Distributor of the Company will be of great value to the Company, and
accordingly, the Company desires to enter into this Agreement with Bosh as set
forth herein in order to secure such services;
WHEREAS, Bosh agrees to purchase from the Company, 100,000 pallets
cumulative over the five year term.
WHEREAS, contemporaneous with the execution of this Non Exclusive
Distribution Agreement (the "Agreement"), Bosh has executed the Confidentiality
and Non Disclosure Agreement, attached as Attachment I; and
WHEREAS, Bosh desires to act as a non exclusive distributor for the
Company of its pallet products on the terms set forth herein.
NOW THEREFORE, for and in consideration of the Non Exclusive
Distributor's agreement with the Company, the above promises and the mutual
agreements hereinafter set forth, Bosh and the Company agree as follows:
1. DISTRIBUTOR DUTIES.
(a) The Company agrees to enter into this Agreement with Bosh for
the sole purpose of selling the Company's pallets. Bosh shall
work with the marketing personnel of the Company or as
directed by the Company's Board.
(b) Bosh shall (i) diligently follow and implement all policies
and decisions communicated by the Board and/or marketing
personnel, (ii) timely prepare and forward to the Board
and/or marketing personnel all reports and accountings as may
be requested.
(c) The Company shall provide Bosh with such technical support
and inventory as appropriate in order for Bosh to perform
under this Agreement.
2. TERM. The term of the Agreement shall be five (5) years ("Term").
In the event the Term expires or if either terminates this Agreement pursuant to
Section 3, Bosh shall diligently assist the Company in transitioning all matters
and work for which he was responsible as the Company shall direct.
3. TERMINATION. This Agreement can be terminated as follows:
(a) By the Company for Cause immediately and without notice.
Cause means conduct amounting to (i) fraud, dishonesty or
breach of fiduciary duty against the Company, (ii) willful
misconduct, repeated refusal to follow the reasonable
directions of the Company or violation of law in the course
of performance under the Agreement, (iii) a material breach
or violation of the terms of this Agreement, (iv) non payment
of amounts owed the Company to be paid timely in accordance
with Section 4.
4. PRE-CONDITIONS. As a pre-condition to the effectiveness of this
Agreement, Bosh shall execute the Confidentiality and Non Disclosure Agreement
attached as Attachment I and provide financial information to the Company which
in the sole discretion of the Company indicates Bosh's ability to purchase the
requirement of 100,000 pallets during the term of the Agreement and to pay the
Company in a timely manner. Bosh agrees that all pricing is F.O.B. at the
Company's plant in Dallas, and payment will be net thirty (30) days after the
invoice date. Invoicing will be done in increments equal to actual shipments.
Bosh acknowledges and agrees that any breach by it of such agreement shall
result in the immediate termination of this Agreement with no further obligation
to pay Bosh under this Agreement.
5. NON EXCLUSIVITY. The Agreement grants Bosh the non exclusive right
to sell the Company's pallets and related platforms with the understanding that
pre-existing relationships (see Attachment III, Bosh's Clients) developed by
Bosh will be treated as Bosh's clients during the term hereof and for a period
of one year thereafter.
6. SEVERABILITY. The parties agree that each of the provisions
included in this Agreement and the Confidentiality and Non Disclosure Agreement
is separate, distinct, and severable from the other provisions of these
Agreements, and that the invalidity or unenforceability of any Agreement
provision shall not affect the validity or enforceability of any other provision
of these Agreements. Further, if any provision of these Agreements is ruled
invalid or unenforceable by a court of competent jurisdiction because of a
conflict between the provision and any applicable law or public policy, the
provision shall be redrawn to make the provision consistent with and valid and
enforceable under the law or public policy.
7. ASSIGNMENT. This Agreement and the rights and obligations of the
hereunder may not be assigned by either party hereto without the prior written
consent of the other party hereto. Notwithstanding the foregoing, this Agreement
shall be binding on and inure to the benefit of the Company's successors.
8. NOTICES. Except as otherwise specifically provided herein, any
notice required or permitted to be given by, or to, either party pursuant to
this Agreement shall be given in writing, and shall be personally delivered, or
mailed by certified mail, return receipt requested, or provided by electronic
transmission with a copy sent contemporaneously by certified mail, return
receipt requested, at the address set forth below or at such other address as
either party shall designate by written notice to the other given in accordance
with this Section. Any notice complying with this Section shall be effective
immediately upon personal delivery or electronic transmission, and if mailed
only, on the third business day after mailing.
9. WAIVER. The waiver by either party hereto of any breach of this
Agreement by the other party hereto shall not be effective unless in writing,
and no such waiver shall operate or be construed as the waiver of the same or
another breach on a subsequent occasion.
10. INDEPENDENT CONTRACTOR. It is expressly understood that Bosh is an
independent contractor and that it is not a principal, partner, or employee of
the Company. The actual performance of all day-to-day work by Bosh hereunder
shall be under the control and direction of Bosh. The Company, being interested
in the result to be obtained, shall at all times have access to the sales
information of Bosh for the purposes of observing the performance hereunder by
Bosh.
11. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the state of Oklahoma. The parties agree that
jurisdiction and venue for any matter arising out of or pertaining to this
Agreement shall be proper only in the state courts located in Tulsa county,
Oklahoma and the federal courts having jurisdiction over the Northern District
of Oklahoma, and the parties hereby consent to such venue and jurisdiction.
12. BENEFICIARY. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors, heirs, executors, administrators
and permitted assigns.
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13. ENTIRE AGREEMENT. This Agreement and the Confidentiality and Non
Disclosure Agreement executed contemporaneously herewith embody the entire
agreement of the parties on the subject matter stated in the Agreement. No
amendment or modification of this Agreement shall be valid or binding upon the
Company or Bosh unless made in writing and signed by both parties. All prior
understandings and agreements relating to the subject matter of this Agreement
are hereby expressly terminated.
14. CONFIDENTIALITY. The terms, conditions and existence of this
Agreement shall be confidential.
IN WITNESS WHEREOF, the Non Exclusive Distributor and the Company have
executed and delivered this Agreement as of the date first shown above.
THE COMPANY: THE NON EXCLUSIVE DISTRIBUTOR:
PALWEB CORPORATION
By: /s/ Xxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxx
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President Bosh Material Handling Incorporated
PALWEB CORPORATION 0000-00xx Xxxxxx XX, Xxxxx X
0000 Xxxx Xxxxxxxx Xxxxxx Xxxxx Xxxxxx, Xxxxxxxx 00000-0000
Xxxxxx, Xxxxx 00000
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ATTACHMENT I
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PRICING LIST
PRICES GOOD THROUGH 12/31/02
Picture frame Granada with grommets @ $18.00 per pallet
Base Resin Cost of Polymer as of July 23, 2002:
$ .33 per pound of Polyethylene as quoted by Exxon/Mobil.
$ .65 per pound of Polypropylene with 15% glass as quoted by
Exxon Mobil/Matrix
Through 12-31-02, the $18.00 per pallet shall be adjusted upward in the
event that the Base Resin Costs increase more than one-half cent per pound.
Example: Polyethylene and Polypropylene 50 lb (tops 30 lbs. - bottom 20
lbs.) each increase $.02 per pound, then the pallet price would increase by One
Dollar from $18.00 per pallet to $19.00 per pallet.
ATTACHMENT II
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Non Exclusive Distributor Confidentiality and Non Disclosure Agreement
ATTACHMENT III
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(Customers of Non Exclusive Distributor as of the date of the Agreement)
Customer Terms
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1. Pharmacia Corporation o Price of $18.00 per Granada Pallet
with rubber inserts and $17.00 per
Granada Pallet without rubber inserts.
o Three (3) year full replacement at no
charge, F.O.B. Dallas with return of old
pallet F.O.B. Dallas.
