- (i) serve as the Company's nonexclusive sales representative to sell and promote the Products;
- (ii) use its best efforts to introduce, promote the sale of, solicit, and obtain new and additional orders for the Products from existing and potential customers in the Territory;
- (iii) timely deliver the Products to the customers after the company has accepted the purchase orders;
- (iv) accurately represent and state Company policies to all potential and present customers;
- (v) assist in finalizing agreements and purchase orders with each customer;
- (vi) provide assistance to the Company in promotional activities in the Territory;
- (vii) devote as much productive time, energy, and ability to the performance of its duties under this agreement as may be necessary to sell and promote the sale of the Products in the Territory in a timely and productive manner;
- (viii) provide and maintain, at its own expense, a competent and adequately trained, skilled,and motivated sales organization for the solicitation and sale of Products to customers;
- (ix) provide reasonable "after sale" support to buyers of the Products;
- (x) promptly inform the Company of all sales and orders;
- (xi) maintain contact with the Company via telephone, e-mail, or other agreed on means of communication with reasonable frequency to discuss sales activity within the Territory;
- (xii) provide weekly monthly reports of sales of the Products to the Company;
- (xiii) disclose any problems concerning customers (including Existing Customers) to the Company; and
- (xiv) perform such other sales-related services with respect to the customers as the Company may reasonably require.
- (i) determine all prices and terms of sale for the Products;
- (ii) provide the Representative with copies of its current price lists, delivery schedules, and standard terms and conditions of sale, and update those documents regularly;
- (iii) notify the Representative of any changes to its procedures affecting the Representative's obligations under this agreement at least 30 days before implementing those changes;
- (iv) provide the Representative, at no cost, materials relating to the Products for use in selling and marketing the Products;
- (v) prepare samples for potential customers, as reasonably requested by the Representative, if the Representative has provided the Company with sufficient notice of this request;
- (vi) provide the Representative with current information as to improvements, upgrades, or other changes in the Products; and
- (vii) make timely payments of amounts earned under this agreement.
2. TERM AND TERMINATION.
- (a) Term. This agreement will become effective as described in section and continue for an initial term of year(s) (the "Term"). Unless either party gives written notice to the other at at least days before the end of the Term, this agreement will renew automatically for an additional -year term. This automatic extension will continue to apply at the end of each extended period until the agreement is terminated.
- (b) Termination. This agreement may be terminated:
- (i) by either party on provision of days' written notice to the other party, with or without cause;
- (ii) by either party for a material breach of any provision of this agreement by the other party, if the other party's material breach is not cured within days of receipt of written notice of the breach; or
- (iii) by the Company at any time and without prior notice, if the Representative is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directives of the Representative, or is guilty of serious misconduct in connection with performance under this agreement . ; or
- (iv) automatically, on the death of the Representative.
3. COMPENSATION.
- (a) Commissions. The Representative shall be entitled to receive a commission on sales of the Products in the Territory to customers, which sales were made substantially through the efforts of the Representative during the Term. Commissions shall be payable as follows:
- (i) % of the Net Amount (as defined below) charged by the Company for orders of the Products placed through the Representative (other than to Existing Customers and their affiliates); and
- (ii) % of the total Net Amount charged by the Company for orders of products other than Products listed in Exhibit A placed through the Representative.
- (i) if prohibited under applicable government law, regulation, or policy;
- (ii) if the Representative did not directly facilitate the sale of the Products to a customer;
- (iii) if the sale was made to customers that are directly or indirectly owned by or under common ownership with the Representative;
- (iv) for any sales outside of the Territory, unless otherwise agreed in writing by the Company;
- (v) for any sales to Existing Customers, unless otherwise agreed in writing by the Company; or
- (vi) for any sale of Products to a customer occurring after the expiration or termination of the Term unless:
- A. the sale takes place within days after the termination of this agreement; and
- B. the sale is the direct result of the Representative's sales efforts before the termination.
4. NATURE OF RELATIONSHIP.
The relationship of the parties under this agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this agreement. Neither party may assume or create obligations on the other party's behalf, and neither party may take any action that creates the appearance of such authority.
5. TERRITORY.
- (a) Representative Territory. During the Term, the Representative shall use its best efforts to sell the Products in the following geographical area (the "Territory"): .
- (b) Company Rights. The Company is free to directly solicit, attempt, and complete sales of Products, or any products or services, in the Territory at any time.
- (c) Territory Reallocation. The Company may modify or limit the Territory with days' written notice to the Representative.
6. CUSTOMERS.
- (a) Preferred Customers. The Representative's sales and promotional efforts shall be directed toward the following customers: . These customers are only examples of the nature and type of market to which the Representative should sell the Products, and are not a limitation on sales that can be made by the Representative in the Territory.
- (b) Existing Customers. The Representative acknowledges that the Company has existing relationships with those customers listed in Exhibit B (the "Existing Customers"), and it will receive no compensation for sales made by the Representative to the Existing Customers.
7. PRODUCTS.
- (a) Product List. The Company may amend the Product list identified in Exhibit A from time to time in its sole discretion with days' advanced written notice to the Representative.
- (b) Discontinuance; Modification. In its discretion, the Company may:
- (i) discontinue or limit the manufacture or sale of any Product; or
- (ii) modify the design, specifications, or construction of any Product or part of a Product.
8. RECORDS; AUDITS.
- (a) Retention of Records. The Representative shall retain originals or copies of all quotations, orders, invoices, correspondence and other documents relating to Products sold under this agreement for a minimum of year(s) after the termination of this agreement. During the Term and for year(s) after the termination of this agreement, the Company may (at its sole expense) and on days' notice examine and audit:
- (i) all records and accounts containing transaction and marketing data for the Products; and
- (ii) the Representative's inventory tracking and management systems.
9. USE OF TRADEMARKS.
The Representative may use, reproduce, and distribute the Company's service marks, trademarks, and trade names (if any) (collectively, the "Company Marks") in connection with the performance of the Services. Any goodwill received from this use will accrue to the Company, which will remain the sole owner of the Company Marks. The Representative may not engage in activities or commit acts, directly or indirectly, that may contest, dispute, or otherwise impair the Company's interest in the Company Marks. The Representative may not cause diminishment of value of the Company Marks through any act or representation. The Representative may not apply for, acquire, or claim any interest in any Company Marks, or others that may be confusingly similar to any of them, through advertising or otherwise. At the expiration or earlier termination of this agreement, the Representative will have no further right to use the Company Marks, unless the Company provides written approval for each such use.
10. WARRANTY.
The Company warrants to the Representative that the Products will be free from material defects in materials and workmanship and will operate substantially in conformance with the Company's documentation for a period of months years . This warranty period begins the date on which the Products are shipped from the Representative to its customers. This warranty does not apply to Products that have been subject to misuse, including neglect, accident, or modification, or that have been altered during assembly and are not capable of being tested by the Company under its normal test conditions. The Company's obligation for Products failing to meet this warranty is to refund the purchase price of the nonconforming Product, or to replace or repair the nonconforming Products. The Company shall bear the cost of freight and insurance for returned Products. The warranty on any replacement Product will be the same as that of the original Products.
11. CONFIDENTIAL INFORMATION.
- (a) Confidentiality. During the Term, the Representative may have access to or receive certain information of or about the Company that the Company designates as confidential or that, under the circumstances surrounding disclosure, ought to be treated as confidential by the Representative ("Confidential Information"). Confidential Information includes information relating to the Company or its current or proposed business, financial statements, budgets and projections, customer identifying information, potential and intended customers, employers, products, computer programs, specifications, manuals, software, analyses, strategies, marketing plans, business plans, and other confidential information, provided orally, in writing, by drawings, or by any other media. The Representative will treat the Confidential Information as confidential and will not disclose it to any third party or use it for any purpose but to fulfill its obligations in this agreement. In addition, the Representative shall use due care and diligence to prevent the unauthorized use or disclosure of such information.
- (b) Exceptions. The obligations and restrictions in subsection (a) do not apply to that part of the Confidential Information:
- (i) was or becomes publically available other than as a result of a disclosure by the Representative in violation of this agreement;
- (ii) was or becomes available to the Representative on a nonconfidential basis before its disclosure to the Representative by the Company, but only if:
- A. the source of such information is not bound by a confidentiality agreement with the Company or
- is not otherwise prohibited from transmitting the information to the Representative by a contractual,
- legal, fiduciary, or other obligation; and
- B. the Representative provides the Company with written notice of its prior possession either (1)
- before the effective date of this agreement or (2) if the Representative later becomes aware (through
- disclosure to the Representative) of any aspect of the Confidential Information as to which the
- Representative had prior possession, promptly on the Representative so becoming aware;
- A. provide the Company with prompt notice of these requests or requirements before making a
- disclosure so that the Company may seek an appropriate protective order or other appropriate
- remedy; and
- B. provide reasonable assistance to the Company in obtaining any protective order.
12. CONFLICT OF INTEREST.
The Representative warrants to the Company that it does not currently represent or promote any lines or products that compete with the Products. During the Term, the Representative may not represent, promote, or otherwise try to sell in the Territory any lines or products that, in the Company's judgment, compete with the Products. The Representative shall provide the Company with a list of the companies and the products that it currently represents, and notify the Company in writing of any new companies or products when its promotion of those new companies and products begins.
13. OTHER ACTIVITIES.
During the Term, the Representative may engage in other independent contracting activities, except that the Representative may not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Representative's obligations or the scope of Services to be rendered for the Company under this agreement.
14. RETURN OF PROPERTY.
Within days of the termination of this agreement, the Representative shall return to the Company, retaining no copies or notes, all Company products (including Products), samples, models, property, and documents relating to the Company's business including reports, abstracts, lists, correspondence, information, computer files, computer disks, and other materials and copies of those materials obtained by the Representative during and in connection with its work with the Company. All files, records, documents, blueprints, specifications, information, letters, notes, media lists, original artwork or creative work, notebooks, and similar items relating to the Company's business, whether prepared by the Representative or by others, remain the Company's exclusive property.
15. INDEMNIFICATION.
- (a) Of Representative by Company. At all times after the effective date of this agreement, the Company shall indemnify the Representative from all damages, liabilities, expenses, claims, or judgments (including interest, penalties, reasonable attorneys' fees, accounting fees, and expert witness fees) (collectively, the "Claims") that the Representative may incur and that arise from:
- (i) the Company's breach of its obligations or representations under this agreement; or
- (ii) the negligent, intentional, or other acts of the Company or its employees;
- (iii) defects or malfunctions of the Products; or
- (iv) the failure of the Company to provide any Products to a customer that has properly ordered through the Representative.
- (i) the Representative's negligence or willful misconduct arising from the Representative's carrying out of its obligations under this agreement;
- (ii) the Representative's breach of any of its obligations or representations under this agreement; or
- (iii) the Representative's breach of its express representation that it is an independent contractor and in compliance with all applicable laws related to work as an independent contractor. If a regulatory body or court of competent jurisdiction finds that the Representative is not an independent contractor or is not in compliance with applicable laws related to work as an independent contractor, based on the Representative's own actions, the Representative will assume full responsibility and liability for all taxes, assessments, and penalties imposed against the Representative or the Company resulting from that contrary interpretation, including taxes, assessments, and penalties that would have been deducted from the Representative's earnings if the Representative had been on the Company's payroll and employed as a Company employee.
16. FORCE MAJEURE.
A party will be not be considered in breach or in default because of, and will not be liable to the other party for, any delay or failure to perform its obligations under this agreement by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that party's reasonable control (each a "Force Majeure Event"). However, if a Force Majeure Event occurs, the affected party shall, as soon as practicable:
- (a) notify the other party of the Force Majeure Event and its impact on performance under this agreement; and
- (b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations under this agreement.
17. GOVERNING LAW; ATTORNEYS' FEES.
- (a) Choice of Law. The laws of the state of govern this agreement (without giving effect to its conflicts of law principles).
- (b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in County, .
18. AMENDMENTS.
No amendment to this agreement will be effective unless it is in writing and signed by a party or its authorized representative.
19. ASSIGNMENT AND DELEGATION.
- (a) No Assignment. Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection.
- (b) No Delegation. Neither party may delegate any performance under this agreement, except with the prior written consent of the other party.
- (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.
20. COUNTERPARTS; ELECTRONIC SIGNATURES.
- (a) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
- (b) Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
21. SEVERABILITY.
If any provision contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if the invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.
22. NOTICES.
- (a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
- (b) Addresses. A party shall address notices under this section to a party at the following addresses:
- If to the Company:
- If to the Representative:
- (c) Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.
23. WAIVER.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
24. ENTIRE AGREEMENT.
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement with respect to its subject matter. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.
25. HEADINGS.
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.
26. EFFECTIVENESS.
This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement.
27. NECESSARY ACTS; FURTHER ASSURANCES.
Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
[SIGNATURE PAGE FOLLOWS]
Each party is signing this agreement on the date stated opposite that party's signature.
