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Exhibit 10.9
SALES AGENCY AGREEMENT
THIS AGREEMENT is made as of the 6th day of November, 2000 BY/AND
BETWEEN XXXXXX RESOURCES LIMITED, (Principal)
AND
RECON INDUSTRIAL PRODUCTS LIMITED ("AGENCY"),
(Hereinafter referred to as the Agency)
WHEREAS, THE PARTIES HAVE MUTUALLY AGREED TO ENTER INTO A NON-EXCLUSIVE SALES
AGENCY AGREEMENT FOR THE DISTRIBUTION OF SUPERFILL.
NOW THEREFORE, in consideration of the parties, it is agreed:
1. EXCLUSIVE REPRESENTATION: Principal grants to Agency the exclusive right
to act as Principal's sales representative, to solicit orders for the
Principal's sole ("product or future products") within the following
geographical area and/or the attached list of potential clients to be
found is the attached appendix.
As outlined in Appendix ("A")
2. SALES POLICIES: The prices, charges and terms of sale of the products
("Sales Policies") shall be established by the Principal. The Sales
Policies shall be those currently in effect and established from time to
time by the Principal in its price books, bulletins, and other authorized
releases. Written notice of each Sales Policy change shall be given by the
Principal to the Agency at least ninety (90) days in advance of such
change.
3. ORDERS AND COLLECTIONS: Orders for products solicited by the Agency shall
be forwarded to and subject to acceptance by the Principal. All invoices
in connection with orders to the Territory shall be rendered by the
Principal direct to the customers, and full responsibility for all
collections and bad debts rests with the Principal. The Principal agrees
to refer to the Agency for attention all inquiries concerning the
Principal's products received by the Principal from any source or by any
means whatsoever from the Territory or for shipment of products into the
territory. The Principal agrees to promptly furnish the Agency with copies
of all correspondence and documentation between the Company and any
customer covering any Superfil orders from within or for shipment into the
Territory or sold to a customer within the Territory and to furnish the
Agency with Statement on the twentieth (20th) day of each month covering
the amount of orders and the amount of invoices for the previous month and
the amount of commission due the Agency.
4. DUTIES: The Purpose of this Agreement is to promote orders and reorders of
Principal's products and services in the Territory and the long term
goodwill of the Agency. The Agency agrees to diligently and faithfully
work the Territory and/or customer list in an endeavour to secure business
for the Principal and use its best efforts to promote Principal's
products. Principal will provide product training to Agency staff and use
its best efforts to perform and provide its products in a fit,
merchandise, workmanlike and marketable manner, provide marketing support
for the sales effort of the Agency and protect and promote Agency-customer
relationships within the territory.
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RELATIONSHIP CREATED: The Agency is not an employee of the Principal for any
purpose whatsoever, but is an independent contractor. Principal is interested
only in results obtained by the "Agency", who shall have sole control of the
manner and means of performing under this Agreement. Principal shall not have
the right to require Agency to do anything which would jeopardize the
relationship of independent contractor between Principal and Agency, unless
otherwise agreed in writing. Agency shall be responsible for Agency's taxes. All
expenses between and disbursements incurred by Agency in connection with
performance by Agency or Agency's sales activities shall be borne wholly and
completely by Agency. Agency does not have, nor shall Agency hold itself out as
having any right, power or authority to create any contract or obligation,
express or implied, on behalf of, in the name of, or binding on the Principal
unless Principal shall consent thereto in writing, excepting to solicit orders
as the same are more particularly defined in this Agreement. Agency shall have
the right to appoint and shall be solely responsible for Agency's own
sub-agents, salespersons, employees, against the Principal for compensation or
reimbursement unless otherwise agreed to in writing between the parties.
Principal shall not during the term of this Agreement of for one year after
termination thereof engage, hire or employ Agency's sub-agents, salespersons,
employees, representatives or agents unless otherwise agreed to by Agency. On
termination of the Agency's right to solicit orders for new business for the
Principal, the Agency shall promptly return to the Principal all promotional
material, order forms and supplies provided by the Principal to the Agency prior
to termination.
COMMISSION: The Agency's commission rate is 10% of the next product sold,
excluding transportation costs, collection costs of past due accounts and any
abnormal administration costs.
Commissions are earned by the Agency on all accepted orders solicited within
and/or delivered to the Territory or client list provided in appendix "A",
whether the orders are sent in by the Agency, received by the Principal by the
mails, taken at the Principal's place of business, or otherwise. The Principal
has the option of accepting or rejecting any order solicited within the
Territory or any order for delivery to the Territory, except that an order will
be considered an accepted order for the purpose of commissions, unless the
Principal does not ship or invoice and notifies the Agency in writing of the
order or orders rejected by the Principal within thirty (30) days of the
submission of the order to the Principal whether submitted by the Agency, a
customer or through some other source. If the order is submitted by mail, the
order will be considered accepted, unless the Principal does not ship or invoice
and notify the Agency in writing of the Principal's rejection of the order
within thirty (30) days of the mailing of such order by the Agency or the
customer or otherwise to the Principal. Principal shall be entitled to charge
back against Agency's commission a sum equal to the commission paid on orders on
which the Principal shall be entitled to charge back against Agency's commission
a sum equal to the commission paid on orders on which the Principal has shipped
the product, the customer has returned the product and the Principal has given
customer full refund or credit for the purchase price on such returned
product(s). Commissions payable to the Agency shall be computed on the net
amount of each invoice rendered for each order or part of an order on shipment,
exclusive of freight and transportation costs, including insurance, normal and
recurring bona fide trade discounts and any applicable sales or similar taxes.
The Agency shall not be charged with or liable for advertising allowances nor
any decrease or reduction of commission based upon volume or other discounts
unless mutually agreed in writing by all parties prior to acceptance of the
order. All commissions payable to the Agency hereunder shall be due and payable
to the Agency on or before the twentieth (20th) day of the month immediately
following invoicing. In the event of termination of this Agreement by either
party, the Agency shall be paid commissions on all orders from orders delivered
to the Territory which are substantially attributable in whole or in part to
activities or services performed prior to the effective date of termination,
regardless of the shipment and invoice date, except in the event of a for cause
termination under paragraph 7.1 in which event Commission obligation is limited
to shipments made by Principal prior to the effective date of termination.
Principal in Principal's sole discretion has the right to split Commissions on
Orders: obtained solely outside the Territory and in the exclusive Territory of
another Sales Agency to whom Principal pays Commission on the Order; deliveries
outside the "Territory" to the exclusive Territory of another Sales Agency to
whom Principal pays Commission on the delivery to the extent that Principal
pays Commission to the other Sales Agency; but in on event shall the Commission
payable to Agency herein be reduced by reason of the split to less than fifty
percent (50%) of the amount Agency earns to paragraph 6.1 of this Agreement.
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TERMS: This Agreement shall continue in full force and effect for one year
(1) and thereafter from year to year based upon the Agent selling no less
than two thousand tons of Superfil per year. This Agreement will not exceed
twenty-one (21) years unless renewed thereafter in writing by the parties
unless the first to occur of the following events at which time the
Agreement right to solicit new business shall terminate.
1 FOR CAUSE TERMINATION:
1.1 Commission of a felony by either party in the course of performance of the
Agreement shall entitle the other to effect immediate termination upon the
giving of written notice.
1.2 The election of one party (the "aggrieved party") to terminate this
Agreement upon (1) the actual breach or actual default by the other party
in the reasonable performance of the defaulting party's obligations and
duties under this Agreement and (2) the failure of the defaulting party to
cure the same within 15 days (the "cure period") after receipt by the
defaulting party of a good faith written notice from the aggrieved party
specifying such breach or default and (3) provided that the defaulting
party has not cured the default and the aggrieved party may then give
written notice to defaulting party of his or its election To terminate ten
(10) days after expiration of the cure period.
2 WITHOUT CAUSE TERMINATION:
2.1 After the first year, on expiration of any one year term, provided written
notice of election to terminate is given in writing to the other party
sixty (60) days before the expiration of the existing term.
2.2 After the first full year, either party retains the right to terminate at
any time after one-hundred twenty (120) days written notice to the other
party of election to terminate.
GENERAL PROVISIONS:
1 This Agreement may be modified or amended in whole or in part from time to
time only by the mutual written agreement signed by all parties and
delivered by each to the other prior to the effective date of such
modification or amendment. Principal shall save Agency harmless from and
against and indemnify Agency for all liability, loss, costs, expense or
damages whatsoever caused by reason of any of the Principal's products
(whether or not defective or covered by warranty) and any act or commission
of Principal or Principal's customers or vendees, including but not limited
to any injury (whether to body, property of personal or business character
or reputation) sustained by any person or organization or to any person or
to property whether from breach of warranty, products liability,
infringement or any patent rights or other rights of third parties and
whether from any result from the sale or distribution of the products by
the Agency, and including any act by the Agency related to the design,
alternation, modification or change of the product supplied by the
Principal, except as to modification or change caused by or assumed in
writing by the Agency. Principal agrees to include the Agency as an insured
in all policies of Principal which provide protection or indemnity against
any liability to customers, consumers or third parties as to any liability
or responsibility above referred to. All provisions of this Agency
Agreement, including the provisions of this Paragraph B, shall be subject
to and shall be enforced and construed pursuant to the laws of the Province
of Ontario (Principals Province) where the principal office is located, as
set forth below. In the event of litigation, prevailing party shall be
entitled to recover interest as may be provided by law. Court costs and
reasonable attorneys fees.
If and in the event that any provisions of this Agreement is void or
voidable under any applicable local or state law, such void or voidable
provisions shall not affect the balance of the Agreement which shall remain
fully enforceable as if void or voidable provisions had been deleted by
mutual consent of the parties.
NOTICE: Any notice, demand or request required or permitted to be given
hereunder shall be in writing and shall be deemed effective twenty four
(24) hours after having been deposited. In the United States mail, postage
prepaid, registered or certified and addressed to the addressee at its main
office, as set forth below. Any party may change its address for purposes
of this Agreement by written notice given in accordance herewith.
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DATE: NOVEMBER 7TH, 2000 DATE: NOVEMBER __TH, 2000
BY: XX. XXXXXX XXXXXXXXX BY: XX. XXXXXXX XXXXXX
TITLE: PRESIDENT & CEO TITLE: PRESIDENT
SIGNATURE: /s/ XXXXXX XXXXXXXXX SIGNATURE: /s/ XXXXXXX XXXXXX
ADDRESS OF PRINCIPAL'S MAIN OFFICE: ADDRESS OF AGENCY'S MAIN OFFICE:
XXXXXX RESOURCES LIMITED 0000 XXX XXXX XXXX,
0000 XXXXX XXXXXX, XXXXXXX, XXXXXXX
NORTH YORK, ONTARIO, CANADA P3G 1L2
X0X 0X0
___________________________ ___________________________
Witness Witness
[XXXXXX RESOURCES LIMITED SEAL]
