MANUFACTURERS REPRESENTATIVE AGREEMENT
X.X. XXXXX SHOE TECHNOLOGIES, INC.
D/b/a DICON TECHNOLOGIES
And
RM ENTERPRISES INTERNATIONAL, LTD
Prepared by:
Xxxxxx X. Xxxxx, Esq.
Xxxxxx, Xxxxx, Littenberg,
Xxxxxxxx & Xxxxxxx, LLP
Xxxxxxxxx, Xxx Xxxxxx 00000
Xxxx X. Xxxxxx, Esq.
Counsel
RM Enterprises International, ltd
Dated: January 11, 2001
MANUFACTURERS REPRESENTATIVE AGREEMENT
THIS Agreement made as the 1st. day of August, 2001 between:
X.X. XXXXX SHOE TECHNOLOGIES, INC.
D/b/a DICON TECHNOLOGIES, INC
A Delaware Corporation
Having a place of business at
0-00 Xxxxx Xxxxx
Xxxx Xxxx, Xxx Xxxxxx 00000
Hereinafter DICON, and
RM ENTERPRISES INTERNATIONAL, LTD.
A Delaware Corporation
Having a place of business at
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Hereinafter RM ENT.
STATEMENT
DICON is a manufacturer of many types of hydrophilic foam products,
hereinafter referred to as the DICON PRODUCTS.
From time to time RM ENT will have customers for said DICON PRODUCTS and RM
ENT desires to act as representative of DICON in the marketing and sale of such
DICON PRODUCTS and DICON is willing to grant such right to RM ENT, all on the
terms and conditions as hereinafter set forth.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable considerations, the receipt of which is acknowledged by the parties,
the parties mutually covenant and agree as follows:
ARTICLE I
CONDITION PRECEDENT
1.1 Excepted from the DICON PRODUCTS is a certain hydrophilic foam molded
product with superabsorbent polymer and detergents, soaps and waxes
manufactured by DICON under a Supply and Requirements Agreement with RSI
ENTERPRISES, INC. (REQUIREMENTS AGREEMENT) entered into as of July 1, 2001,
which product is identified in such REQUIREMENTS AGREEMENT as the RSI
SPONGE PRODUCTS, and RSI has the exclusive right to market, promote,
advertise and sell such RSI SPONGE PRODUCTS for use in the cleaning and
polishing of land, sea and air transportation vehicles.
1.2 The performance of RM ENT and DICON, pursuant to the terms and conditions
as set forth herein, shall not constitute a breach of the terms and
conditions of the said REQUIREMENTS AGREEMENT nor shall it create any
liability under the terms and conditions of said REQUIREMENTS AGREEMENTS.
ARTICLE II
PRODUCTS AND TERRITORIES
2.1
(a) Subject to the limitations, terms and conditions set forth herein, for the
specific customers as set forth in EXHIBIT A attached, hereinafter called
RM ENT SPECIAL CUSTOMERS LIST, DICON hereby appoints and grants to RM ENT
the exclusive authority to solicit orders on behalf of DICON for DICON
PRODUCTS.
(b) The parties may add to or terminate one or more of the customers on the RM
ENT SPECIAL CUTOMERS LIST in accordance with the procedure as follows:
i. After the effective date of this Agreement, the parties at any time
may, by mutual consent in writing signed by both parties, agree to add
a new customer to or terminate an existing customer from the RM ENT
SPECIAL CUSTOMERS LIST.
ii. After the effective date of this Agreement, RM ENT may, by a thirty
(30) day notice in writing to DICON, request that a new customer be
added, giving supporting reasons therefore. IF DICON, fails or refuses
to object to the RM ENT request within said thirty (30) day period or
such extensions thereon to which the parties agree in writing, then
the new customer shall automatically be added to the RM ENT SPECIAL
CUSTOMERS LIST and RM ENT with respect to any such new customer shall
be subject to the same terms and conditions as set forth in the
Agreement provided further, however, if any objections regarding such
new customer cannot be resolved amicably between the parties during
such period, then either party may elect to submit the issue regarding
adding such new customer to Arbitration as herein provided.
iii. For any such new customer added to the RM ENT SPECIAL CUSTOMERS LIST,
RM ENT shall have eighteen (18) months in which to establish an active
management and marketing relationship between such new customer and
DICON.
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iv. After this Agreement has been in force for eighteen (18) months
following the effect date thereof, or the case of a new customer added
to the RM ENT SPEICAL CUSTOMERS LIST for a period of eighteen (18)
months to begin following the month in which said new customer was
added to the RM ENT SPECIAL CUSTOMER LIST, DICON shall have the right
by a thirty (30) day period or such extensions thereof on which the
parties shall agree in writing signed by both parities, then the
termination of such existing customer shall become effective thereof,
provided further, however if any objections regarding such termination
cannot be resolved amicably between the parties during such period,
then either party may elect to submit the issue regarding termination
of such existing customer to Arbitration as herein provided.
v. In the event that a customer on the RM ENT SPECIAL CUSTOMERS LIST
shall be terminated for any reason, all further marketing efforts with
such terminated customer shall be on a non-exclusive basis.
ARTICLE III
ORDERS, PRICES AND SALES POLICIES
3.1 Orders for products solicited by RM ENT shall be forwarded to DICON for
acceptance by DICON either in writing or by shipment of any such order.
3.2 Prices, chargers, terms and conditions of sale for the enumerated products
herein shall be established by DICON from time to time, and those prices,
charges, terms and conditions of sales currently in effect shall be
supplied to RM ENT; further, however, prices shall at all times be subject
to DICON'S price adjustment clauses, if any, on which RM ENT has received
notice in writing and which are in effect during the period that this
Agreement is in force.
3.3 Notice of any changes in the said prices, terms and conditions of sale for
the products enumerated herein shall be provided in writing to RM ENT, and
any such changes shall take effect thirty (30) days after the receipt of
such written notice by RM ENT, provided further, however, that any such
changes shall not be effective against orders received by DICON prior to
the date when such price change becomes effective.
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3.4 All orders entered by RM ENT and shipped will be invoiced by DICON directly
to the customer. DICON shall maintain all accounts with customers and shall
have full responsibility for obtaining due payment thereof. However, DICON
shall have the right to request RM ENT to aid and abet the collection of
any past due accounts.
ARTICLE IV
RESPONSIBILITIES OF DICON
4.1. Except as provided herein, DICON will not enter into a like agreement with
others if with the customers as shown on the RM ENT SPECIAL CUSTOMERS LIST
for the sale of the DICON PRODUCTS during the life of this Agreement.
4.2 DICON reserves the right to make quotations and to market and sell the
DICON PRODUCTS, either directly or through others, for OEM accounts,
export, Federal Government and other customers not identified on the RM ENT
SPECIAL CUSTOMERS LIST.
4.3 Except as to the exclusions above set forth, DICON agrees to notify RM ENT
of all inquires, invoices and communications received or transmitted by
DICON for any of the enumerated customers on the RM ENT SPECIAL CUSTOMERS
LIST and to promptly supply to RM ENT copies of all invoices,
correspondence and documentation between the customers making such
inquirers and communication, and DICON will recommend to such customers
making such inquiries to use the services of and to placing of orders
directly with RM ENT. However, if any such person shall elect to place the
order with DICON, after consulting with RM ENT, commissions as hereinafter
provided shall become due and payable on any such order in accordance with
the terms hereof.
4.4 DICON represents that it has a manufacturing facility and the required
personnel to fulfill the manufacturing requirements for meeting orders
entered upon DICON by RM ENT in accordance with the terms and conditions of
this Agreement, and RM ENT acknowledges that is has inspected and approved
the DICON manufacturing facilities for providing the DICON PRODUCTS.
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ARTICLE V
RESPONSIBILITIES OF RM ENT
5.1 RM ENT shall maintain a sales facility and the required personnel to
fulfill the terms and conditions of the present Agreement and to promote
the sale of the products coming under this Agreement and all expenses and
disbursements therefor shall be the sole and whole responsibility of RM
ENT, and no claim therefor shall be made against DICON. In the event that
RM ENT shall fail to promote the marketing, advertisement and sale of the
DICON PRODUCTS either to all of the customers listed or any individual
customers listed in the RM ENT SPECIAL CUSTOMERS LIST, this shall be
grounds for the termination of cancellation of all or part of this
representation Agreement by DICON as hereinafter provided.
5.2 RM ENT acknowledges that the relationship of employer-employee is not
established by reason of the making of this Agreement and RM ENT is an
independent contractor having sole control of the manner and means for
performing the obligations under the terms and conditions of this
Agreement.
5.3 RM ENT acknowledges that is does not have and that it will not hold itself
out as having any right, power or authority to create any contract or
obligation, express or implied, on behalf of or in the name of binding upon
DICON.
5.4 RM ENT shall not represent any other third party either directly or
indirectly for the purposes of marketing and selling any product line which
competes with the products enumerated herein during the full term of this
Agreement.
5.5 RM ENT acknowledges and agrees that no rights or interest in or under any
DICON patents, trademarks, service marks or the DICON business name shall
be acquired by reason of the authority granted under the terms and
conditions of this Agreement or by reason of the making of this Agreement;
and RM ENT acknowledges that the same are owned by DICON, and further on
termination of this Agreement, as hereinafter provided as a condition of
termination, RM ENT will terminate all use of any DICON trademarks, service
marks and of the DICON business name and will discontinue any display
thereof.
5.6 The parties mutually acknowledge that this Agreement relies in part on the
trust imposed on each other in their dealing with the customers now or
hereinafter listed on the RM RNT SPECIAL CUSTOMERS LIST. Accordingly, the
parties agree to keep each other fully informed regarding all
communications had with such customers and agree to work in behalf of their
mutual best interest in regard to each of said customers. Any failure to
maintain this understanding shall constitute a breach of this Agreement.
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ARTICLE VI
COMMISSIONS
6.1 NET SALES as used herein shall mean the invoiced amount per product
actually shipped by DICON and paid for by the customers during the terms of
this Agreement less freight, transportation or other shipping charges,
insurance, customs duties, sales and use taxes, federal excises taxes and
normal and recurring bona fide trade discounts, if any.
6.2 DICON agrees to pay RM ENT and RM ENT agrees to accept, in full payment for
all services and expenses incurred by RM ENT in accordance with the terms
and conditions hereunder, a commission equal to ten percent (10%) of the
NET SALES on all products entered on and invoiced by DICON on orders from
customers on the RM ENT SPECIAL CUSTOMERS LIST.
6.3 Commissions shall be earned when DICON ships the products to the customers
in accordance with orders as entered herein, and the payment of commissions
shall be made to RM ENT within thirty (30) days after the customer is
informed on a given order by DICON, subject to DICON'S right to deduct
returns and allowance incurred during the month previous to the month in
which any payments are made.
6.4 RM ENT may call on DICON in the case of any of the customers on the RM ENT
SPECIAL CUSTOMERS LIST to help negotiate or to resolve any other problems
which arise with respect to an order or potential order, in which event the
commission to be received by RM ENT shall be adjusted between the parties
as a function of the responsibilities which each of the parties take in
actively managing the sales effort on the particular customer.
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6.5
(a) In the event that a new customer shall be added or a request that a
new customer be added for the DICON PRODUCTS other than one on the RM
ENT SPECIAL CUSTOMERS LIST, and RM ENT shall agree to undertake the
ongoing and active management and marketing effort for the supplying
of DICON PRODUCTS to such new customer, then such new customer shall
be deemed to fall within the RM ENT SPECIAL CUSTOMERS, and the terms
and conditions of this Agreement shall apply to such added customer
and this shall be confirmed in writing between the parties.
(b) In the event RM ENT shall introduce a new customer for the DICON
PRODUCTS other than one on the RM ENT SPECIAL CUSTOMERS LIST but RM
ENT shall be unable to undertake the active management and marketing
effort for supplying of DICON PRODUCTS to such new customer, RM ENT
shall receive only a FINDER'S FEE equal to five percent (5%) of the
NET SALES of the DICON PRODUCTS entered and purchased by such new
customer during the first two ANNUAL PERIODS following the
introduction and acceptance by DICON of such new customer, but no
further commissions or other consideration need to be paid by DION to
RM ENT thereafter.
ARTICLE VII
DURATION AND TERMINATION
7.1 Unless sooner terminated as herein provided, this Agreement will run for
three (3) ANNUAL PERIODS, the first ANNUAL PERIOD to commence on August 1,
2001 and end on July 31, 2002 and thereafter, unless sooner terminated or
cancelled, shall renew itself from ANNUAL PERIOD that this Agreement shall
remain in force shall commence on the anniversary date of said first ANNUAL
PERIOD.
7.2 After the end of the third ANNUAL PERIOD, this Agreement shall be subject
to the right of either party to terminate the Agreement at will by a thirty
(30) day notice in writing to the other party.
7.3 In the event of termination, other than for cause and except as otherwise
limited herein, commissions will be paid to RM ENT on all orders booked up
to the effective date of termination, even though the same may be shipped
thereafter, provided further, however, that following any such termination
other than for cause, for a period of twenty-four (24) months, the first
month to begin on the first month following the effective date of
termination and the last month to end on the last day of the twenty-fourth
(24th.) month thereafter, DICON shall pay to RM ENT a commission of five
percent (5%) of the NET SALES of all products shipped and invoiced by DICON
on orders entered from customers on the RM ENT SPECIAL CUSTOMERS LIST, and
all DICON'S liability for commission due to RM ENT on such termination
shall thereafter be discharged.
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ARTICLE VIII
GENERAL CONDITIONS
8.1 This Agreement contains the entire understanding of the parties and
supersedes all previous oral and written agreements relating to this
subject matter, if any, and there are no other agreements, representations,
warranties or obligations between the parties for the purpose of this
Agreement, other than those set forth herein. This Agreement cannot be
changed or modified except by mutual agreement of the parties consented to
in writing signed by both parties.
8.2 The invalidity or unenforceability of any provision hereof shall in no way
affect the validity or enforceability of any other provision. Delay or
failure at any time to enforce any rights hereunder shall not constitute a
waiver of said rights or of any other rights.
8.3 The validity of this Agreement and the interpretation and performance of
all of the terms shall be governed by the laws of the State of New Jersey
or of the United States, as the case may be.
8.4 Any controversy, dispute or claim arising out of the terms and conditions
of this Agreement or relating to this Agreement or any breach thereof,
including without limitations, any claim that this Agreement or any portion
thereof is invalid, illegal or otherwise voidable, or any statutory claims,
shall be submitted to arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect,
and judgement upon any award may be entered in any court having
jurisdiction of the party against whom such award is granted, provided
further that such arbitration shall be subject to the following:
(i) it shall be held in metropolitan North New Jersey;
(ii) the parties shall share the cost of the arbitration equally; and
(iii)the arbitration tribunal hearing such arbitration shall not be
authorized to award pecuniary damages and shall limit discovery to
thirty (30) days.
8.5 (a) All material which is stamped confidential and/or shall be otherwise
designated as confidential by DICON shall be so maintained by RM ENT
and not disclosed except on an - as needed - basis for the purpose of
marketing the products coming under the terms of this Agreement, and
on termination all such material and copies thereof shall be returned
to DICON, and for a period of five (5) years, the information
contained therein shall not be disclosed to any other third party of
used to compete with DICON during such period.
(b) Any samples of the products which RM ENT has on hand as of the
effective date of termination of this Agreement must be returned for
credit or RM ENT'S account will be charged and RM ENT will be liable
for the new amount of such product.
8.6 Any notice to be given shall be in writing sent first-class mail postage
prepaid or hand delivered, and such notice shall be addressed to the party
at the address stated herein or such other address on which a party has
notified the other party in writing, and the notice shall be deemed
effective as of the United States Postal Authority date stamp thereon.
8.7 This Agreement is personal in nature and cannot be assigned or transferred
by RM ENT without the written consent of DICON, except that RM ENT shall
have the right to assign and transfer this Agreement to as subsidiary
provided that:
(a) RM ENT shall give notice thereof to DICON and make a representation
that such subsidiary is financially competent to assume all the rights
and obligations under this Agreement; and
(b) Any such subsidiary shall acknowledge in writing that they have read
and reviewed all the terms and conditions of this Agreement and agree
to be bound by all the terms and obligations as set forth therein
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SEPARATE LAST PAGE
ALL SIGNATURES AND DRYZ LOGO ON FILE
IN WITNESS WHEREOF, the parties have caused this agreement to be duly
executed by their authorized representative and the effective date of this
agreement to be the date first above set forth.
Signed at Fairlawn, New Jersey
On this 8th day of July, 2001
X.X. XXXXX SHOE TECHNOLOGIES, INC.
d/b/a/ DICON TECHNOLOGIES
By /s/ Xxxxx Celta
XXXXX XXXXX, VICE PRESIDENT
Signed at Fairlawn, New Jersey
On this 8th day of July, 2001
RSI ENTERPRISES, INC.
By /s/ Xxxxxxx X. Xxxxxx
XXXXXXX X. XXXXXX, PRESIDENT
EXHIBIT A
RM ENT SPECIAL CUSTOMERS LIST
1. Reckitt Benkiser
2. Ameriderm
3. Endorex
