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Exhibit 10.7
SALES AGENCY AGREEMENT
THIS AGREEMENT is made as of the 22 day of September, 1997, by and
BETWEEN XXXXXX RESOURCES LIMITED, (Principal)
AND Alliance Financial, Ltd., 0000 Xxxxxxx Xxxxxx, Xxxxxx, XX, XXX 00000
("AGENCY"). (Hereinafter referred to as the Agency)
WHEREAS, THE PARTIES HAVE MUTUALLY AGREED TO ENTER INTO AN EXCLUSIVE SALES
AGENCY AGREEMENT FOR THE DISTRIBUTION OF ENVIROFIL.
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.
As outlined in Appendix one (1).
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 Envirofil
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 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, merchantable, 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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5. 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 the 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 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, agents and representatives who shall
be at Agency's own risk, expense and supervision and shall not have any
claim 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 or for one year after termination
thereof engage, hire or employ Agency's sub-agents, salesperson,
employees, representatives or agents unless otherwise agreed to be 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.
6. COMMISSION: The Agency's commission rate is 9% of the next product sold,
excluding transportation costs.
6.1. Commissions are earned by the Agency on all accepted orders solicited
within and/or delivered to the Territory, 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 notifies 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 has
shipped the product, the customer has returned the product and the
Principal has given the customer full refund or credit for the purchase
price on such returned product. 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 deliveries
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.
6.2 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 no 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 pursuant To Paragraph 6.1 of this Agreement.
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7. Terms:
This agreement shall continue in force and effect for one (1) year and
thereafter from year to year based upon the Agent selling no less than
two thousand tons of Envirofil 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 Agencies right to solicit new business shall terminate.
7.1 For Cause Termination:
7.1.1 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.
7.1.2 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.
7.2 Without Cause Termination:
7.2.1 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.
7.2.2 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.
8. General Provisions:
8.1 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 Principals products
(whether or not defective or covered by warranty) and any act or
commission of Principal or Principals 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 violation of municipal,
state or federal laws or regulations governing the products or services
or their sale which may result from the sale or distribution of the
products by the Agency, and including any act by the Agency related to
the design, alteration, modification or change of the product supplied
by the Principal, except as to modification or change caused by or
assumed in writing by Agency. Principal agrees to include 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 8,
shall be subject to and shall be enforced and construed pursuant to the
laws of the State (Agencies State) where the Agencies principal office
is located, as set forth below. Principal hereby appoints as its agent
for service of process in connection with any action brought by Agency
against Principal hereunder the Secretary of State of Agencies state of
residence at the time such action is brought. 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 event any provision of this agreement is void or voidable
under any applicable local or state law, such void or voidable provision
shall not affect the balance of the Agreement which shall remain fully
enforceable as if void or voidable provision had been deleted by mutual
consent of the parties.
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9. NOTICES:
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.
DATE: Sept. 22/99
DIRECTOR: X AGENCY: Alliance Financial Ltd.
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By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
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Title: President & CEO Title: President
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Address of Principal's Main Office: Address of Agency's Main Office:
Xxxxxx Resources Limited 0000 Xxxxxxx Xxxxxx, Building 2,
000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx, XXX
Xxxxxx, Xxxxxxx, Xxxxxx 00000
X0X 0X0
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ALLIANCE FINANCIAL LIMITED
APPENDIX "A"
COMPANY NAME LOCATION
------------ --------
UNIVERSAL FRICTION MANHEIM, PA
RAYBESTOS CRAWFORDSVILLE, INDIANA
PM AUTOMOTIVE BATAVIA, ILLINOIS
AC MOLDING WALLINGFORD, CT
BRAKE PARTS INC. HAMDEN, CT
FRICTION PRODUCTS MEDINA, OHIO
WHEELING BRAKE BRIDGEPORT, OHIO
HIBBING INTERNATIONAL NEW CASTLE, INDIANA
HYDRAMECHANICAL STERLING HEIGHTS, MICHIGAN
PLASTLOCK INC BUFFALO, NY
PMC INC DALLAS, TEXAS
SAVEREISEN INC PITTSBURGH, PA
GENERAL ELECTRIC FAIRFIELD, CT
UNION CARBIDE DANBURY, CT
AMERICAN REFRACTORIES NORTH HAVEN, CT
AREMCO OSSINING, NY
TRIMITE POWDERS SPARTANSBURG, SC
FARBOR POWDER COATINGS BALTIMORE, MD
BENDIX/ALLIED SIGNAL SOUTHFIELD, MICHIGAN
ECHLIN MFG BRANFORD, CT
XXXXXXX & ASSOCIATES WASHINGTON, DC
HIGHWAY REHAB CORP XXXXXXXX, NY
The above accounts have been approved for Alliance Financial, Limited.
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxx X. Xxxxxxxx
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Xxxxxx Xxxxxxxxx Xxxx X. Xxxxxxxx
President and CEO President
Xxxxxx Resources Limited Alliance Financial Limited
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ALLIANCE FINANCIAL LIMITED
APPENDIX "B"
COMPANY NAME LOCATION
------------ --------
HONEYWELL/ALLIED SIGNAL SOUTHFIELD, MICHIGAN
ECHLIN MFG BRANFORD, CT.
RAYTECH SHELTON, CT.
The above accounts have been approved for Alliance Financial, Limited
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxx X. Xxxxxxxx
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Xxxxxx Xxxxxxxxx Xxxx X. Xxxxxxxx
President and CEO President
Xxxxxx Resources Limited Alliance Financial, Limited
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Per our discussion, I have created an APPENDIX "B" for those accounts which
will be paid at 10% commission and changed the commission paragraph to reflect
this.
6. COMMISSION: APPENDIX 'A' -- The Agency's commission rate is 9% of
the next product sold, excluding transportation costs.
APPENDIX 'B' -- The Agency's commission rate is 10% of the next
product sold, excluding transportation costs.
