Exhibit 10.4
AGREEMENT
This
Agreement is entered into and made effective as of the 21st day of
October, 2005 by and between HESPERIA HOLDING INC., a Nevada
Corporation, located at 9780 E Avenue, Hesperia, CA 92345
(“Hesperia”) and UNIVERSAL FOREST PRODUCTS EASTERN
DIVISION, INC., a Michigan Corporation (“UFPED”)
located at 2801 E. Beltline, NE, Grand Rapids, MI 49525.
WHEREAS, UFPED is the manufacturer of the Open Joist 2000 line of
products (the “Products”) and will assist in marketing
and distributing the Products through Hesperia;
WHEREAS, Hesperia has a non-exclusive right from UFPED to market,
distribute and service the Open Joist 2000 Products in the West
Coast territories (“Territory”) as an authorized
dealer;
WHEREAS, Hesperia intends to perform the engineering, delivery and
servicing of the Products from UFPED through Hesperia’s
resale channels currently held in the West Coast territories and
possibly expand the territory to the continental United States;
NOW,
THEREFORE, in consideration of the premises and of the mutual
covenants and
promises herein contained, the parties agree as follows.
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“Customer” means an end
user of any of the Products.
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“Limited Warranty Statement” means UFPED's then-current
warranty from UFPED to its current Customers.
“Products” means the Open Joist 2000 products in
UFPED's current Product List.
This includes all
components needed for the product. UFPED may add to, delete
from, or otherwise modify the Products at any time
without notice to Hesperia.
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“Territory” means any
area West of the Mississippi River.
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2.1
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APPOINTMENT. UFPED
hereby appoints Hesperia, and Hesperia accepts such appointment, to
act as a non-exclusive reseller of the Products throughout the
Territory. Hesperia also has the right to expand its sales to the
continental United States, but will not impede on any pre-existing
agreements between UFPED and other vendors of the Products.
Hesperia
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will use its current resale channels for the sale of Products and
Hesperia may market or sell the Products using any Internet site or
mail order catalog without specific written authorization by UFPED.
Hesperia may also market the Products through architects,
engineers, developers and framers.
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2.2
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PRICES. The prices paid
by Hesperia to UFPED for Products shall initially be as set forth
in Exhibit A. The parties shall have the right, at any time, to
change, alter, or amend Product prices upon written notice.
Hesperia is eligible to receive credit terms that are mutually
agreed upon by both parties and may be reevaluated and expanded due
to sales volume and performance of Hesperia. Prices are exclusive
of all taxes, insurance, and shipping and handling charges, which
are Hesperia’s sole responsibility.
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3.1
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ORDERS. Orders shall be
in writing and be subject to acceptance by UFPED. The terms and
conditions of each order shall be as provided by this Agreement,
and the provisions of either party's form of purchase order,
acknowledgment or other business forms will not apply to any order
notwithstanding the other party's acknowledgment or acceptance of
such form.
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3.2
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PAYMENT. Subject to
compliance with UFPED's credit requirements, payments on orders
will be due and payable in full 20 days from the invoice date, with
a 1% discount for payments made within 10 days. Hesperia shall pay
monthly service charges of 1% per month for any past due amounts.
The credit terms may be changed at the discretion of UFPED.
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4.1
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DEFECTIVE PRODUCT
RETURNS. Returns of defective Products will be processed through
return processing centers and consolidated for shipment weekly or
biweekly to UFPED by Hesperia. Returns of defective Products will
be paid for by UFPED when UFPED authorized carriers are used.
Return shipment charges via unauthorized carriers are the
responsibility of Hesperia. UFPED reserves the right to charge-back
to Hesperia shipping charges incurred on those Products which were
returned as defective and no fault was found.
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5.
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JOINT SALES,
PROMOTION, AND MARKETING. As further consideration for the
agreement granted herein and for the work to be performed by both
parties herein, the parties agree to perform the following sales,
promotional, and marketing activities on behalf of the
Products:
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5.1.
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Both parties shall
coordinate a joint strategy for all customers for the Products.
This is intended to encourage a consistent and cooperative
sales,
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marketing and support effort between Hesperia and UFPED. Hesperia
shall not take any actions which would violate the terms of
UFPED’s License Agreement with Distribution Open Joist.
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5.2
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Hesperia will provide
all the necessary sales support relating to Hesperia’s
specific distribution of the Products.
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5.3
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Hesperia and UFPED
shall each use reasonable efforts to advertise and promote the
Products at their own expense, using trademarks and copyright
notices where appropriate.
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5.4
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Hesperia and UFPED
shall work together to release significant company information,
timely press releases and public position statements, relating to
the execution of this Agreement.
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6.
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[ intentionally
omitted]
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7.1
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The term
“Confidential Information” as used herein shall mean
all confidential and proprietary information including, but not
necessarily limited to, technical information and drawings,
operating procedures, production technologies, client lists,
creative concepts, and business plans. The Parties agree that
Confidential Information does not include information whi
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