Exhibit 10.23
TREX DISTRIBUTOR
AGREEMENT
THIS AGREEMENT is made as of
, 2008, by and between TREX COMPANY, INC., having its principal
office at 160 Exeter Drive, Winchester, Virginia 22603-8605 (the
“Company”) and
, with its principal office at
(the “Distributor”).
1. Appointment of Distributor
.
(a) Appointment:
Distributor’s Location(s)/Territory . Upon the terms and
conditions of this Agreement, the Company hereby appoints the
Distributor as an authorized non-exclusive distributor of the
Company’s various products as agreed to from time to time
between the parties (the “Trex Products”), it being
understood that the Company may not appoint the Distributor as an
authorized distributor of all of the Company’s various
product lines, and the Distributor hereby accepts such appointment,
with respect to the Distributor’s location(s) and within the
territory (“Territory”) set forth in Schedule A
attached hereto and incorporated herein. In such capacity, the
Distributor will purchase Trex Products from the Company and will
devote its continuing best efforts to the promotion and sale of
such Trex Products in the Territory.
(b) Amendments to Schedule A
. The parties may amend Schedule A from time to time to add or
remove Distributor location(s) and/or modify the
Distributor’s Territory.
(c) Reservation of Rights by the
Company . The Company reserves the right to take the following
actions within the Distributor’s Territory: (i) to
appoint or be represented by other or additional distributors;
(ii) to make sales directly to any or all customers of the
same and/or other Company products, and (iii) to sell
exclusively, on a direct basis, to certain types of customers or
specific accounts which Company may, in its sole discretion,
designate from time to time in accordance with then current Company
policies. The Company will notify Distributor prior to appointing
additional distributors in its Territory.
(d) Addition, Discontinuance and
Modification of Products . The Company shall have the right at
any time to introduce new Trex Products, discontinue the
manufacture or sale of any of its Trex Products and make changes in
the design or construction of any of such Trex Products without
incurring any obligation or liability whatsoever. The Company will
give the Distributor thirty (30) days prior notice of any
discontinuance of a Trex Product.
2. Terms of Purchase
.
(a) Ordering of Trex Products
. All orders for Trex Products placed by Distributor shall be in
writing or by fax or e-mail. (A telephone request to purchase, or
to modify an existing order, shall not be considered an order
unless and until followed up in writing.) All orders shall be
subject to acceptance by the Company at Winchester,
Virginia.
(b) Prices . The Distributor
shall purchase Trex Products at the prices in effect at the time of
order. The Company may implement price changes at any time during
the term of this Agreement upon thirty (30) days prior written
notice thereof to Distributor. In addition to the purchase price,
Distributor shall pay to the Company the amount of all taxes,
excises or other governmental charges (except taxes on or measured
by net income) that the Company may be required to pay on the sale
or delivery of any Products sold and delivered hereunder, except
where the law otherwise provides.
(c) Delivery . All products
shall be shipped FOB shipping point, with title and risk of loss
passing at such point. The shipment destination must be within the
Distributor’s Territory. The Company will not ship product
outside of the Distributor’s Territory unless the Company
elects to do so in certain limited situations. Any taxes,
administrative or governmental charges incurred as a result of the
purchase of Trex Products are the sole responsibility of the
Distributor.
(d) Payment . The Company
shall invoice the Distributor for the Trex Products at the time of
shipment and the Distributor shall pay such invoices on a 1% 15,
net 16 day basis unless otherwise approved by the Company prior to
shipment. In the event the Distributor fails to pay such invoices
within such period, the Distributor hereby agrees to pay a monthly
service charge at one and one-half percent (1 1/2%), or, if such
rate is prohibited under applicable law, a service charge at such
lesser rate of interest as is the maximum rate permitted to be
contracted for under such applicable law.
(e) Warranty . The Company
warrants that for a period of one (1) year from the date of
shipment to the Distributor, the Trex Products sold shall be free
from defects in workmanship and materials, and shall conform to the
Company’s standard specifications for such Trex Products in
effect at the time of the shipment. If defects occur within the
warranty period, the Distributor
shall notify the Company immediately
and, upon confirmation by an authorized Company sales
representative of the defects, the Company’s sole
responsibility shall be to replace the defective items. This
warranty does not apply to defects not caused by the Company (for
example, accidents or abuse while in Distributor’s
possession). The Company shall not have any liability of any kind
under this warranty unless the Distributor gives the Company notice
of its claim within thirty (30) days after the date the
Distributor knows or should know of its claim. EXCEPT AS SET FORTH
HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT
TO TREX PRODUCTS. THE COMPANY EXPRESSLY EXCLUDES AND DISCLAIMS ANY
IMPLIED WARRANTY OF MERCHANTABILITY AND ANY WARRANTIES OF FITNESS
FOR A PARTICULAR PURPOSE, APPLICATION OR USE. UNDER NO
CIRCUMSTANCES WILL THE COMPANY BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, WHETHER SUCH DAMAGES ARE SOUGHT IN CONTRACT,
IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT
LIABILITY) OR OTHERWISE, AND THE COMPANY’S LIABILITY SHALL IN
NO EVENT EXCEED THE PURCHASE PRICE OF THE TREX PRODUCTS ON WHICH
SUCH LIABILITY IS BASED.
3. Trex Trademarks . The
Distributor shall have the right hereunder to represent that it is
“an Authorized Distributor of Trex Company Products.”
Any other use by the Distributor of the trademark
“Trex” or any other trademark owned by the Company must
be in a form and format approved by the Company in advance of such
usage.
4. Promotional Materials .
During the term of this Agreement, the Company shall take
reasonable action to assist the Distributor in the
Distributor’s efforts to promote and sell Trex Products,
including the provision of reasonable quantities of support
materials such as product information and sales promotional
literature.
5. Duties of the Distributor
.
(a) Sales Activities . The
Distributor agrees to use its best efforts vigorously and actively
to promote the sale of Trex Products in the Territory. In
connection with such efforts, the Distributor, at its sole cost and
expense, shall organize and maintain a sales force and shall
maintain adequate sales and warehouse facilities within the
Territory that are satisfactory to the Company.
(b) Storage of Inventory .
The Distributor agrees to store Trex Products in accordance with
Trex’s storage guidelines.
(c) Appropriate Use of Trex
Products . The Distributor shall use its best efforts to train
dealers and contractors in its Territory as to the proper usage and
application of Trex Products in accordance with applicable Trex
installation and usage guidelines and code listings supplied by the
Company from time to time to the Distributor.
(d) Inventory Levels . The
Distributor agrees to maintain an inventory equal to at least
fifteen percent (15%) of the mutually agreed upon annual
objective, in various profiles and colors, to adequately serve the
needs of its customers.
(e) Trex Authorized
Dealers/Territory . Except as otherwise provided on Schedule A,
the Distributor agrees to resell Trex Products only to Trex
Authorized Dealers (as defined by the Company) who are located
within the Territory. The Distributor further agrees not to resell
Trex Products to any Trex Authorized Dealer located within the
Territory where the Distributor has reason to know that such Dealer
intends to resell the Trex Products outside of the
Territory.
(f) Advertising . Each
printed advertisement, flyer, handbill, television spot, radio
script, yellow pages listing, webpage or any other advertising or
promotional material bearing or using the trademark or trade name
“Trex” or pertaining to Trex Products must be approved
by the Company in writing prior to its use by the Distributor. Such
approval will not be unreasonably withheld or delayed.
(g) Reputation . The
Distributor shall continually maintain to the satisfaction of the
Company a general reputation for honesty, integrity and good credit
standing and shall maintain the highest quality
standards.
(h) Competing Products . With
respect to each Distributor location set forth on Schedule A, the
Distributor shall not, directly or indirectly, promote, advertise,
manufacture, market, distribute or sell a product produced from
predominately plastics, or wood-plastic composite, or plastic
combined with natural or man-made fibers, which competes with Trex
Products.
(i) Compliance With Law . The
Distributor shall comply with all laws, ordinances and regulations,
both state and federal, applicable to the Distributor’s
business.
(j) Expenses . The
Distributor shall pay and discharge, and the Company shall have no
obligation to pay for, any expenses or costs of any kind or nature
incurred by the Distributor in connec
