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EXHIBIT 10.2
(STD INT'L)
DISTRIBUTOR AGREEMENT
THIS AGREEMENT, made at Sarasota, Florida, by and between SUN
HYDRAULICS CORPORATION, a Florida corporation, hereinafter referred to as
"SUN," and ______________________ hereinafter referred to as
"__________________," to be effective as of the ____________ 1993.
WITNESSETH:
WHEREAS, SUN and __________ desire to enter into an agreement whereby
SUN will sell and _________________ will purchase and resell the SUN products
specified herein,
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable considerations, the receipt and
sufficiency of which is hereby acknowledged by each of the parties hereto, the
parties agree as follows:
1) Appointment. SUN hereby appoints _______________ to purchase and
resell the SUN products specified in paragraph 2 below upon the terms
and conditions set forth hereafter.
2) Products. The products covered by this agreement are the products
designated by SUN as Industrial and Mobile Hydraulics Components,
including those currently in production and those which may be
introduced in the future under this designation, hereinafter called
"products" or "product." SUN shall have the right to discontinue
supplying Distributor with any product if SUN ceases production or
distribution of such products, but shall provide __________________
with manufacturing drawings to ensure supply of spare parts and spare
units.
3) Limitations of Sales and Use of Products. ____________________ and SUN
mutually agree that SUN products, as stated in SUN's product catalog,
are not suited for any of the following applications:
(A) Any product which comes under the U.S. Federal Highway Safety
Act, or similar regulations of other governments namely
steering or braking systems for passenger-carrying vehicles or
on-highway trucks.
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(B) Aircraft or space vehicles.
(C) Ordnance equipment.
(D) Life support equipment.
(E) Any end product which, when sold, comes under U.S. or other
government Nuclear Regulatory Commission rules and
regulations.
SUN does not have any performance assurance programs for testing products for
the above applications. SUN's products are not designed for these applications
and SUN does not warrant, recommend or approve its products for these
applications. Accordingly, _____________________ is prohibited from and agrees
not to solicit or sell SUN's products for any of the above uses or
applications. ____________________ shall be solely responsible for any loss or
damages occasioned by breach of the provisions of this paragraph and shall
carry product liability and liability insurance as provided for under the
provisions of Paragraph 15 hereafter to insure against such loss or damages.
4) Prices. __________________ will pay SUN for its products as follows
based on SUN's domestic list price as shown in its Catalog
000-000-000, 1 July 1992 (revised from time to time):
(A) Distributor stock orders for standard catalog products
Catalog products are subject to a discount of 50%. This
generous grouping discount is offered only to overseas
distributors on the assumption that normal stock orders will
comprise a minimum of 50 standard pieces. This will be
reviewed every 12 months.
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(B) Orders for single standard catalog item
Although the maximum discount available is 50%, a higher
discount can be negotiated for a single product in large
quantities. To be eligible for a higher discount the order
must be for 300 or more of a single model code. Prices for
large quantities are available by individual quote only, but
the following may be used as a guide in estimating the price:
Discount for same catalog model code
300 -- 999 54% off list
1000+ 56% off list
(C) Orders for form tools
Sun cavity form tools are available only at net prices shown
in the catalog. (The form tools are offered as an aid in
selling Sun cartridges to customers who wish to incorporate
them directly into their own products.)
(D) Orders for custom products and valvepacs
Orders for custom products and valvepacs will be priced by
quotation only for all quantities.
(E) Orders for all service kits are subject to 50% discount.
5) Terms and Conditions of Sale.
(A) All invoices are net 30 days. SUN will advise ________________ by
FAX of invoice information on date of shipment.
(B) All prices are F.O.B. the factory in U.S. dollars.
(C) Shipment: Normal shipments will be made by air freight
collect. Stock order shipments and large orders may be
requested by sea freight.
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(D) All prices are subject to change without notice.
(1) All price reductions are effective immediately.
(2) Existing orders at the time of a price increase will
be shipped at the original acknowledged prices for a
period of 60 days.
(E) Quantity increases to a distributor's order received by SUN
after the order has been acknowledged, will be treated as a
new order.
(F) Quantity decreases to a distributor's order received by SUN
after the order has been acknowledged, may be subject to
cancellation charges to cover material, work in progress and a
reasonable profit, if not related to Standard Products.
6) Area of Primary Sales Responsibility -- Territory.
_________________ is assigned primary sales responsibility for the
territory described below, except as noted in Section 7 of this
agreement:
(ENTER TERRITORY)
______________ agrees to actively promote sales of SUN products and to
call on actual and potential users and customers of the products in
this area for this purpose.
7) Direct Sales. IT IS SUN'S POLICY NOT TO SELL DIRECTLY TO CUSTOMERS IN
THE DISTRIBUTORS TERRITORY except as noted below:
(A) SUN may at its discretion sell directly to companies
manufacturing hydraulic components whose US affiliates are
currently or have been members in good standing of the
National Fluid Power Association (NFPA), and who have
worldwide purchasing agreements with SUN. SUN will advise
____________ of any such agreement prior to selling into the
subject areas.
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(B) SUN may sell to customers in Distributor's territory when
customer's purchase orders have been refused by the
Distributor provided the refusal is not due to customer's
inability to settle their outstanding account with
Distributor.
8) Refusal of Orders. SUN reserves the right, at its discretion, to
refuse shipment of any Distributor's order(s) if the Distributor is
delinquent in paying SUN's invoices or is in default under any of the
other terms and conditions hereunder.
Any acceptance of an order, or shipment of a different order or any
part of an order, does not waive SUN's right to refuse to complete
shipment or to refuse to ship or accept additional orders from
Distributor.
9) Distributor Stock Service. _______________ will at all times maintain
an adequate inventory of SUN products and furnish prompt, efficient
and willing service to purchasers of SUN products in the territory.
To assist in accomplishing this important objective, SUN will develop
a periodic schedule for inventory exchange.
SUN will contact ________________ once each year and after a mutual
evaluation of inventory, authorize specific items to be exchanged for
its other SUN products, under the following conditions:
(A) Standard cartridges and standard valve assemblies (at standard
settings) and standard bodies may be exchanged on a dollar for
dollar basis (at current list price) for other standard
cartridges, valve assemblies and bodies, provided:
(1) All items returned are in new condition and in
factory boxes.
(2) All returned items are one year old or less.
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(B) All other SUN products (nonstocking catalog items and SUN
custom valvepacs) will be subject to negotiation to determine
their exchange value. _________________ can be assured that
SUN will maximize the exchange value of these products in
support of _____________ stocking program.
10) Returned Goods.
Written permission to return any product to the factory must be
obtained from SUN prior to shipment.
All return goods will be shipped freight prepaid and include, with the
shipment, a complete explanation of reasons for the return and work
requested, so that SUN can make a prompt disposition of the matter.
SUN products may be returned to SUN, after approval has been received,
for the following reasons:
(A) Warranty Evaluation
SUN warrants that its products are free from defect in
material, workmanship and design for a period of three years
after installation, provided installation date is less than
one year after manufacture. "O" rings and seals are
specifically excluded from this warranty.
In no instance is there any warranty of fitness for a
particular use, and SUN cannot and does not accept
responsibility of any type for any of its products that have
been subjected to improper installation, application,
negligence, tampering or abuse, or which have been repaired or
altered outside the SUN factory.
SUN's liability under the warranty shall extend only to
replacement or correction, F.O.B. our factory, of any
defective part or product determined by inspection as not
conforming to this warranty. SUN makes no other warranties,
express or implied, and is not responsible for any
consequential damages resulting from use by any buyer or user,
its liability being limited to the value of the product sold
or obligation to replace a defective part.
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(B) Repairs (out of warranty)
Complete valves, valve bodies, custom valves and custom
valvepacs will be repaired (or refurbished) on a quotation
basis.
(C) Engineering Evaluation
SUN's Engineering Department, a customer, or
_________________, from time to time, may request a particular
SUN product to be evaluated in a specific manner by SUN's
Engineering Department. SUN is very willing to cooperate in
such evaluations whenever it will help _____________ in its
relations with an important customer or to advance the state
of the art.
11) Sales Effort Cooperation.
(A) SUN agrees to forward directly to Distributor all sales leads
generated within the territory from SUN's direct mail,
advertising and publicity.
(B) In order to assist SUN in providing up-to-date market data and
analysis to the Distributor, determine SUN's needs for future
plant capacity, and otherwise carry out its obligations,
Distributor agrees to provide sales and market data from time
to time, when requested by SUN, in a form mutually agreeable
to both parties.
12) Promotional Materials. SUN will provide _______________ with a supply
of catalogs, service bulletins, technical data and other advertising
and promotional materials, some free and some at a price established
by SUN.
13) Good Will. SUN and _____________ mutually agree that performance under
this contract will generate goodwill for both parties with customers
and prospective customers of _____________ who are users or
prospective users of SUN products. _____________ contribution to this
goodwill will include, but not be limited to, active sales effort on
behalf of SUN's products and the maintenance of adequate stock of SUN
products to meet ________________ customers' needs. SUN's contribution
to this goodwill will include, but not be limited to, advertising and
promotion of SUN products, referral of sales leads to
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_______________, training of _________________ sales personnel in the
application and sale of the products, and joint sales and service
efforts with ________________ personnel when mutually agreed upon.
Both parties recognize the mutual creation of this goodwill and their
individual contributions to it and each party agrees herewith that no
future claim for goodwill will be made against the other party under
any conditions whatsoever.
14) Relationship of SUN and________________. The relationship created by
this agreement is that of buyer and seller, not principal and agent.
SUN may not make a binding contract on behalf of __________________,
and may not do any other act that would be the act of an Agent of
___________. _____________ is not and shall not be the agent, employee
or partner of, or joint venturer with SUN. In no event shall SUN be
responsible for any obligation or liability of _________________,
whether or not the obligation or liability shall have been incurred in
connection with the sale of any products manufactured or supplied
hereunder except as described in Paragraph 15) hereafter.
15) Patent Litigation; Product Liability. SUN agrees at its sole expense
to defend and hold ___________________ harmless from any loss or
liability for any patent infringements, patent claims or patent
damages that _______________ incurs by reason of selling SUN products
under the provisions hereof. Except in cases where a SUN product fails
to operate within the specifications set forth for each product in
SUN's catalogs, _______________ agrees at its sole expense to defend
and hold SUN harmless from any loss or liability by reason of any sale
by __________________ of SUN products. ______________ further
acknowledges and agrees it is ___________________ sole responsibility
to technically train its sales and service personnel and to inform its
representatives of known characteristics of SUN products or of
specific restrictions on use of SUN products. SUN agrees to provide
technical training assistance to _________________ at such time and in
such manner as is mutually agreeable to SUN and ___________________.
EXCEPT as to applications prohibited under the provision of Paragraph
3) above, all SUN products shipped to __________________ hereunder
shall be covered by the SUN warranty as set forth in Paragraph 10) (A)
above. No other terms including warranties, shall apply except as may
be specifically agreed in writing for a particular order.
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16) TAXES. SUN prices do not include applicable sales, use, excise or
similar taxes, if any. ______________ agrees to assume responsibility
for all such taxes on _____________ orders for SUN products,
literature and sales aids.
17) Excusable Delays. SUN will endeavor to deliver products of suitable
quality within agreed upon time limits, but SUN shall not be liable
for any damages resulting from failure to deliver, delay in making
deliveries or cancellation of ______________ orders initiated by SUN,
nor for any loss of profits by ______________ or its customer.
18) Trademarks, Trade Names. _______________ shall not use, directly or
indirectly, any trademark or trade name which is now or may
hereinafter be owned by SUN as part of the ________________ corporate
or business name, or in any way in connection with __________________
business, except in the manner or to the extent that SUN may
specifically consent to such use in writing.
19) Assignment. This Distribution Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective
heirs, successors and assigns; provided, however, that
________________________ rights hereunder cannot be assigned or
transferred, in whole or in part, directly or indirectly, whether by
________________ or by operation of law or otherwise, to any person,
firm or corporation, without prior written consent of SUN.
20) Entire Agreement. This Distribution Agreement constitutes the entire
Agreement between the parties, superseding all previous agreements, if
any, relating to distribution of the products whether oral or written.
No terms or provisions of this agreement may be waived, modified or
supplemented except by written consent of both parties.
21) Waiver. Failure of either party at any time to require performance by
the other party of any provision hereof shall not be deemed a
continuing waiver of the provision or waiver of any other provision of
this agreement whether or not it is of the same or similar nature.
22) Life of Agreement -- Termination. This Distributor Agreement shall
remain in force until terminated. The initial period will be for two
years, provided that ___________ does not enter into distribution of
cartridge valves in competition with SUN's product. After the initial
period either party may terminate, with or without cause, by
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giving of at least six (6) months advance written notice specifying
the date of termination. Either party may also terminate this
agreement without written notice upon insolvency of, appointment of a
receiver for, or filing of a petition in bankruptcy by or against, the
other party.
(A) At termination of this agreement, _______________ agrees to
return to SUN, freight collect, all sales literature, sales
aids and any confidential material in ________________
possession.
(B) Orders on hand at termination of the agreement will be honored
provided:
(1) Orders are scheduled for shipment within sixty (60)
days from termination of this agreement.
(2) Payment for SUN's shipments to ___________________
are made in advance. SUN reserves the right to waive
this requirement to provide continuity of service to
customers.
(C) SUN products in ______________ stock at termination of this
agreement may be returned to SUN for credit under the
following terms:
(1) Full credit will be issued by SUN for products that
have been in __________________ stock for less than
one year and which are in new condition and in
factory boxes.
(2) Products which have been used or have been in
_______________ stock for more than one year will be
evaluated by SUN and credit determined on a piece by
piece basis.
(3) All products returned for credit will be shipped
freight prepaid to SUN by __________________.
23) Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Florida.
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IN WITNESS WHEREOF, we have hereunto set our hands and seals and have
caused this Agreement to be executed as of the day and year first
above written.
(DISTRIBUTOR NAME)
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In the presence of:
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By:
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(Name/Title)
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SUN HYDRAULICS CORPORATION
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By:
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Xxxxx X. Xxxxx, President
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