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EXHIBIT 10.4.6
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MANUFACTURERS' REPRESENTATIVE AGREEMENT
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THIS AGREEMENT, made this 1st day of MARCH 1979, by and between
UNION Tubular Products BRUNSWICK CORPORATION, A Delaware, U.S.A. corporation
(hereinafter referred to as "UNION"), and M. A. XXXXX an individual (hereinafter
referred to as Representative").
WITNESSETH
WHEREAS, UNION is engaged in the manufacture, sale and/or distribution
of golf shafts (hereinafter referred to as "Products"); and
WHEREAS, Representative represents that he is capable of and desires to
act as UNION's Representative in the solicitation of order for Products.
NOW THEREFORE, in consideration of the premises and the mutual
obligations hereinafter set forth, the parties agree as follows:
1. UNION hereby appoints Representative as its sole Representative to
promote sales of and solicit orders for Products from Golf Club Assemblers,
Customer Club Makers, Repair Operations and Component Part Distributors in the
United Kingdom and Europe.
2. Representative's solicitation of orders for Products shall be in
accordance with the prices, terms and conditions of sale determined solely by
UNION, which prices, terms and conditions may be changed from time to time and
become effective upon receipt of changes by Representative. It is understood
that specifications and models of Products may be changed at any time without
notice and at the sole discretion of UNION and that UNION may add or delete
products from the definition of Products herein.
3. UNION shall, if it deems necessary, supply Representative with
reasonable quantities of catalogues, samples and/or other sales and promotional
material to aid Representative in the promotion and sale of Products. No charge
shall be made for such material.
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4. Representative shall use its best efforts to promote and maximize
the good will of UNION and the sale of Products. Such efforts shall include, but
not be limited to:
a. Distribution of sales literature to prospective customers
for Products.
b. Advertising Products and participating in industry shows.
c. Courteous treatment of UNION's customers and customer
problems.
5. UNION may, at its discretion, forward to Representative certain
sales leads and inquiries for Products.
6. All orders for Products obtained by Representative shall be
immediately forwarded to UNION. Such orders shall not be deemed accepted by
UNION unless and until the ordered Products are shipped by UNINO or until such
orders are accepted in writing by UNION. Acceptance or rejection of any order or
part thereof shall be at the sole discretion of UNION and Representative shall
so inform customers, as well as encourage them, to send their orders directly to
UNION.
7. Representative may use the designation of "Authorized Manufacturers'
Representative of UNION" but shall not use UNION's name, trademarks and/or
tradenames in its business title nor in any other way except in connection with
the promotion and sale of Products and then only in accordance with UNION's
instructions. Representative hereby recognizes UNION's ownership of its name,
trademarks and/or tradenames, registered or unregistered, and shall not at any
time register, attempt to register nor assert any right of ownership therein.
Representative, upon request of UNION, shall co-operate with UNION in the
registration, protection and/or enforcement of UNION's rights in such trademarks
and/or tradenames. UNION shall indemnify Representative for all legal and other
expenses incurred by Representative in respect thereof, provided that written
permission from UNION as to such expenditures is first obtained, in the event
that this agreement is terminated for any reason. Upon termination,
Representative shall immediately cease all use of UNION's name, trademarks and
other designations. The requirements herein shall apply not only to specific
names, marks and designations presently used by UNION, but any names, marks and
designations adopted by UNION during the terms of this Agreement and any
colorable imitations thereof.
8. Upon written request of UNION, Representative shall supply UNION
with any available financial information concerning any account solicited by
Representative under the terms of this agreement providing such information has
been obtained by Representative solely because of the existence of this
Agreement, and Representative will co-operate with UNION in the collection of
any of UNION's accounts. UNION shall indemnify Representative for all expenses
thereby incurred. It shall be the responsibility of the Representative to inform
UNION of any extraordinary expenses related to UNION's request for information
that the Representative
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would expect payment for in addition to normal commissions paid in accordance
with paragraph 13 (a) prior to incurring an extraordinary expense.
9. Representative shall not represent nor promote the sale of any
products competitive with Products. It is hereby agreed that Representative's
business associations with the XXXXXX LEATHER and RUBBER COMPANY, U.S.A., AND
BIRCHWOOD MANUFACTURING COMPANY, U.S.A. do not constitute a breach of this
clause.
10. Representative is not the agent nor employee of UNION, and has no
authority to and shall not attempt to legally bind UNION in any manner.
11. All expenses incurred by Representative hereunder are the sole
obligation of Representative except as otherwise agreed in Clauses 7, 8 and 18
and reimbursement for such expenses and compensation for work by Representative
done hereunder are recognized as being fully compensated by the commissions to
be paid Representative hereunder.
12. UNION shall pay Representative commissions on its sales of Products
solicited by Representative based upon UNION's net invoice amount during the
effective term of this Agreement. Such commissions shall be due and payable by
UNION on or before the end of each calendar month for the prior month's
shipments. "Net invoice amount" as used herein shall mean the invoice amount for
Products shipped, less any freight, shipment charges, duties, tariffs,
packaging, and taxes included therein. Products returned to UNION and invoices
not paid to UNION shall be deducted from monthly sales to compute commissions
due. UNION shall submit a report to Representative of shipments made during the
month, along with the commission payment. Commissions shall be paid in U.S.
dollars.
13. UNION shall pay commissions to Representative in the following
manner and on the following sales:
a. A Commission of 5% on sales of Products to any account
in the United Kingdom and Europe with the one exception of Xxx Xxxxxx, North
Berwick, Scotland, for which the commission paid will be 2% on shipments through
Dec. 31, 1979. Commencing Jan. 1, 1980, commissions on shipments to Xxx Xxxxxx
shall be 5%.
14. This Agreement shall become effective as of March 1, 1979 and may
be terminated by either party hereto, with or without cause, at any time upon
ninety days prior written notice to the other party. Such notice shall be deemed
made as of the date deposited in the mail (return receipt requested) and
properly addressed to the other party as follows:
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UNION: Brunswick Corporation
Attn: Manager, UNION Tubular Products
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Representative: M. A. Xxxxx
0 Xxxxxxxx Xxxxx
Xxxxx
Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx
or such other address of which either party hereto has notified the other party
in writing.
a. In the event of termination by UNION, other than
termination under Clause 17 hereof, the commissions due under 13 (a) shall
continue to be paid on sales of Products to such accounts shipped by UNION
within one year of the date of termination. In addition, commissions due under
13 (a) shall continue to be paid at one half the commission rate set forth in 13
(a) for the second year following termination at which time such commissions
shall cease.
15. Termination of this Agreement in accordance with Paragraph 14
hereof shall be deemed a complete and total release by each party hereto of the
other party of all claims, actions and demands of any nature whatsoever which
either had or may have had, known or unknown, through the effective date of
termination except for commissions due or to become due Representative as herein
provided.
16. This contract shall be governed by the law of Connecticut.
17. Representative, its agents and employees, if any, shall fulfill its
obligations hereunder in accordance with the highest ethical business standards
and shall not in any manner, directly or indirectly, participate in any bribes,
fraudulent practices or secret payments to any governmental employee or
customer, nor engage in the purchase of influence or practice of kickbacks. Any
violation of this provision will render this Agreement void Ab initio.
18. UNION shall further indemnify Representative for any expenses
arising from any claims or demands whatsoever made on the Representative arising
from defects in Products and Products' labelling and packaging, in his capacity
as Manufacturers' Representative of UNION. It shall be the responsibility of the
Representative to immediately notify UNION of any such
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claim and to refrain from negotiating a settlement of the claim except as
instructed by UNION in writing.
19. All expenses and indemnities not related to sales commissions will
be paid in pounds sterling within three months of notification by Representative
to UNION.
20. This Agreement constitutes the entire agreement between the parties
hereto relating to Products and supersedes all prior agreements, written or
oral, relating to Products. No modifications, changes or additions to the
provisions of this Agreement shall be binding upon either party unless
specifically provided for herein or reduced to writing and executed by
Authorized officials of both parties.
21. This Agreement shall not be assigned by Representative without
the prior written consent of UNION.
22. In the case of dispute or difference arising between Representative
and UNION as to any matter or thing arising out of or relating to this Contract
which is not settled by agreement between the said Parties, the same shall be
arbitrated by an independent, mutually acceptable, arbitration body. In the
event of the Parties not agreeing on a mutually acceptable body, the selection
of an Arbitrator shall be referred to the Director of the Institute of
Arbitrators, No. 00 Xxxx Xxxxxxxx, Xxxxxx, X.0., who shall appoint an Arbitrator
and both UNION and Representative shall be bound by the decision of the
appointed Arbitrator. UNION and Representative further agree that the expense
incurred in having an Arbitrator appointed, and the costs of the appointed
Arbitrator, will be borne equally between both Parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
UNION Tubular Products
BRUNSWICK CORPORATION
Representative: By: /s/ Xxxxxx X. Donatillo
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Title Oper. Mgr.
/s/ X. X. Xxxxx
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X.X. Xxxxx
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