EXHIBIT 10.4
CYTEC CORP
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2555 BAIRD ROAD, PENFIELD, NEW YORK 14526 (716) 381-4740 FAX:(716)381-0478
REPRESENTATIVE AGREEMENT
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This Manufacturer's Representative Agreement is made this 20th day of December
1988, by and between CYTEC CORPORATION, a corporation under the laws of the
state of New York, having its principle office at 2555 Baird Road, Penfield, NY
14526, hereinafter referred to as the "PRINCIPAL" and ENERTEC INTERNATIONAL at
_________________________________ hereinafter referred to as the:
"REPRESENTATIVE".
RECITALS
A. PRINCIPAL is engaged in the business of manufacturing and supplying certain
goods, equipment, and/or products, hereinafter referred to as the
"Products."
B. REPRESENTATIVE desires to engage in the business of being a Representative
for the PRINCIPAL'S products, and PRINCIPAL desires that REPRESENTATIVE be
so engaged, on the terms of this Agreement.
AGREEMENT
It is mutually agreed as follows:
1. APPOINTMENT AND ACCEPTANCE
PRINCIPAL appoints REPRESENTATIVE as its exclusive selling representative
to sell products specified in Section 3 in the territory defined in Section
2; and REPRESENTATIVE accepts the appointment and agrees to sell and
promote the sale of the PRINCIPAL'S products.
2. TERRITORY
Representative's territory will consist of the geographical area,
hereinafter referred to as the "Territory."
3. PRODUCTS
The Products of the PRINCIPAL to be sold by the REPRESENTATIVE are
specified in the Product Bulletins and Price Lists. The PRINCIPAL may, with
the consent of REPRESENTATIVE, amend the Product Bulletins and Price Lists
from time to time to add new or additional Products manufactured or sold by
the PRINCIPAL.
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4. AMOUNT OF COMPENSATION
(a) REPRESENTATIVE shall receive from PRINCIPAL, on all sales of
PRINCIPAL's products originating from the Territory, a sales
commission in accordance with the provisions of Attachment C attached
hereto. Said commission shall be paid on all orders originating from
the Territory occurring after the effective dates of this Agreement,
and before the date of termination. In addition, commissions shall be
paid for sixty (60) days after the effective date of termination of
this agreement on all accounts identified in writing to PRINCIPAL
prior to the termination date.
(b) Commissions shall be computed on the net selling price of Products to
the customer. The net selling price shall be the gross price paid by
the customer, less license fees, royalties, taxes, shipping charges,
and any allowances or discounts granted to REPRESENTATIVE by
PRINCIPAL.
(c) Representative's commissions shall be paid on or before the 15th day
of the month following the month in which PRINCIPAL receives payment
from its customers.
(d) Commissions paid or credited to REPRESENTATIVE on sales of PRINCIPAL's
Products which are returned to PRINCIPAL, or on which allowances or
adjustments are made for any reason, shall be promptly repaid to
PRINCIPAL upon written notification from PRINCIPAL.
(e) In the event multiple Sales Territories are involved in an order,
commissions shall be split in the following manner:
25% to purchasing territory
50% to engineering territory
25% to installation territory
5. ACCEPTANCE OF ORDERS
(a) The PRINCIPAL will have the right, at its sole discretion, to accept
or reject any and all orders from customers within the Territory. All
credit risks will be the responsibility of the PRINCIPAL.
(b) The PRINCIPAL will furnish the REPRESENTATIVE with copies of all
quotations, order acknowledgments, shipping notices, invoices,
credits, and other correspondence pertaining to the customers orders
as requested by the REPRESENTATIVE.
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6. TERMS OF SALE
All sales will be at prices and upon terms established by the PRINCIPAL,
and it will have the right, at its sole discretion, form time to time, to
establish, change, alter or amend prices and other terms and conditions of
sale. REPRESENTATIVE will not accept orders in the PRINCIPAL's name or make
quotations or delivery promises without the PRINCIPAL's prior approval.
7. RESPONSIBILITIES OR REPRESENTATIVE
(a) REPRESENTATIVE will use its best efforts to promote and sell
PRINCIPAL's Products within the Territory, devoting adequate time and
resources to this task.
(b) REPRESENTATIVE will maintain, at Representative's expense, office,
telephone, and other facilities as are necessary to promote the sales
of PRINCIPAL's Products.
(c) REPRESENTATIVE will maintain a sales organization within the Territory
appropriate for the promotion and sale of PRINCIPAL's Products. The
sales personnel shall have sufficient knowledge of PRINCIPAL's
Products to assist customers with product applications.
(d) REPRESENTATIVE shall assist PRINCIPAL in demonstrations to customers,
and coordinate with PRINCIPAL for product service and product
warranties undertaken by PRINCIPAL.
(e) REPRESENTATIVE shall provide prompt attention and resolution to
inquiries and complaints from customers within the Territory.
(f) REPRESENTATIVE shall submit to PRINCIPAL such information as PRINCIPAL
may reasonably request from time to time in connection with
Representative's activities.
(g) REPRESENTATIVE will furnish a written sales forecast on a monthly
basis. This forecast shall be issued on approximately the first day of
each month and will include potential orders for the next ninety (90)
days.
(h) REPRESENTATIVE shall make no representations or warranties except as
specifically authorized by PRINCIPAL.
(i) The REPRESENTATIVE will handle no other product in the allocated
territory that is competitive with the PRINCIPAL's Products unless
prior written consent of the PRINCIPAL is obtained. REPRESENTATIVE
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will provide to PRINCIPAL a list of current principals. REPRESENTATIVE
will notify PRINCIPAL in writing of additions or deletions to the
list.
8. RESPONSIBILITIES OF PRINCIPAL
(a) PRINCIPAL shall provide sales support to REPRESENTATIVE and its sales
personnel.
(b) PRINCIPAL shall provide technical support for its products.
(c) PRINCIPAL shall provide reasonable quantities of sales literature,
brochures, and other sales support materials deemed necessary by
PRINCIPAL. All sales literature, etc. will be provided at the expense
of the PRINCIPAL, shall remain the property of the PRINCIPAL, and will
be returned to PRINCIPAL WHEN REQUESTED.
(d) PRINCIPAL shall promptly provide REPRESENTATIVE with sales leads
originating from within Representative's Territory which were
generated to PRINCIPAL by advertising, promotions, or direct factory
contact.
(e) PRINCIPAL shall provide a warranty on all PRINCIPAL Products
represented by REPRESENTATIVE. PRINCIPAL assumes all responsibility
for quality and performance of its products.
9. TERM OF AGREEMENT AND TERMINATION
This agreement will be effective on the date shown in the opening paragraph
of this agreement and will continue in force unless terminated by 90 days
prior written notice by either party.
10. CONSTRUCTION OF AGREEMENT
This agreement will be construed according to the laws of the State of New
York.
11. DISPUTES AND ARBITRATION
The parties agree that any disputes or questions arising hereunder,
including the construction or application of this Agreement, will be
settled by arbitration in accordance with the rules of the American
Arbitration Association then in force.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
PRINCIPAL: REPRESENTATIVE:
CYTEC CORPORATION _____________________________
By:___________________________ By:__________________________
Harry Turner Harry Mund
President President
12/20/88 1/25/89
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REPRESENTATIVE AGREEMENT
ATTACHMENT C
REPRESENTATIVE COMPENSATION SCHEDULE
Commission on all product sales in the territory shall be 15% of the total net
price, except as follows:
1. Where discounts are given for either quantity, or for any other reason the
following schedule will apply.
DISCOUNT COMMISSION RATE
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5 12.5%
10 10.0%
15 8.0%
20 7.0%
25 6.0%
30 5.0%
2. On all other items, including special products, obsolete products, special
engineering, documentation and spares the Commission Rate will be 5% of
Invoice Price.
3. Where a system includes standard products and special engineering, the
standard products will be commissionable at 15% and the remainder at 5%.
4. On accounts sent for collection the cost of collection will be treated as
discount and commission will be paid at that discount rate.
PRINCIPAL: REPRESENTATIVE:
CYTEC CORPORATION _____________________________
By:___________________________ By:__________________________
Harry Turner Harry Mund
12/20/88 1/25/89
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