SALES REPRESENTATIVE AGREEMENT
THIS SALES REPRESENTATIVE AGREEMENT (the "Agreement") is made as of this _____ day of ______, 20__ (the "Effective Date") between ______("REPRESENTATIVE"), a company organized in accordance with the laws of ______, having its principal office located at ______, and ______, ("CORE"), a company having its principal office located at ______, each party hereto being referred to herein from time to time as a "Party," singularly, or the "Parties," jointly.
WHEREAS, CORE desires to sell various types of products to and/or perform servicesfor Customers in ______(hereinafter referred to as the "Territory"); and
WHEREAS, REPRESENTATIVE is willing to provide marketing and sales assistance as provided herein,
NOW THEREFORE, the Parties have mutually agreed as follows:
1.Appointment. CORE hereby appoints REPRESENTATIVE, and REPRESENTATIVE agrees to serve, as CORE's [sole]representative in the Territory to solicit orders in CORE's name and for the benefit of CORE's account from existing, potential, and future customers of CORE located in the Territory (the "Customers"), subject to the terms of this Agreement, in order to facilitate the sale of certain products and/or services as more fully described in Exhibit “A” (the "Services"). The Parties acknowledge that this Agreement does not include any of CORE's other products or services and is limited solely to the Services referred to herein. In particular, any and all outstanding bids as of the date of this Agreement by CORE for Services are expressly excluded from this Agreement.
2.Obligations of REPRESENTATIVE. REPRESENTATIVE will use its best efforts to promote the sale of Services to Customers within the Territory, to solicit from such Customers orders for Services to be used within the Territory, and, as and when requested by CORE from time to time, to assist CORE with all governmental entities and departments within the Territory. The obligations and duties of REPRESENTATIVE under this Agreement shall include but not be limited to the following:
- to identify, develop, monitor, and report to CORE, from time to time, all projects of interest to CORE within the Territory;
b.to assist in obtaining and renewing any and all necessary or advisable trade licenses, entry visas, work permits, residence visas and other permits, licenses, and authorizations for CORE employees and for all such other expatriates whose presence is deemed by CORE to be required for any matter related to its business in the Territory, and to assist in performing all official matters with and satisfying all formalities required by Governmental and Municipal Departments, including Ministries and Police Departments, whenever requested by CORE;
c.to assist CORE in the formation, registration, and approval of CORE by applicable governmental authorities within the Territory;
d.to assist CORE in obtaining all necessary government documentation and clearance for the proper import, use, and export of CORE property to, within, and from the Territory;
e.to expend best efforts to promote the interests of CORE's business in the Territory and provide such assistance as may be reasonably required by CORE to secure such business for CORE as REPRESENTATIVE is in a position to secure;
f.to transmit promptly to CORE all inquiries received by REPRESENTATIVE which in any way relate to CORE's activities and Services;
g.to maintain such facilities and personnel as are reasonably adequate to perform its obligations under the terms of this Agreement;
h.to make arrangements for inclusion of CORE's name on the lists of the suppliers and or contractors which may be invited to bid for the supply of any Services in the Territory;
i.to furnish to Customers such sales and other materials which describe Services and their use, as CORE may furnish from time to time to REPRESENTATIVE;
j.to provide CORE with copies of all correspondence with Customers and such additional information concerning Customers as CORE may reasonably request;
k.to assist in preparation and submission of technical and commercial proposals to be submitted by CORE to assure favorable consideration;
l.to assist CORE in the preparation and conduct of in-person technical presentations;
m.to assist in the conduct of negotiations for contracts and purchase orders with Customers;
n.to devote such time and effort as may be necessary properly to promote the sale of Services in the Territory;
o.to assist CORE in acquiring documentation from governmental authorities within the Territory as may be necessary and appropriate to obtain U.S. export licenses or local import licenses;
p.to make periodic Customer visits to determine level of Customer satisfaction with Services;
q.to follow-up on the progress of commercial evaluation of proposals to Customers and inform promptly thereon so that CORE may take any necessary corrective measures;
r.to assist CORE in making collections and obtain information regarding the credit rating of Customers or prospective Customers; and
s.to give any other assistance reasonably requested by CORE.
3. Inquiries received by CORE. CORE undertakes to furnish REPRESENTATIVE with copies of all relevant inquiries and quotations received by CORE relating to sales of Services to Customers first brought to the attention of CORE by REPRESENTATIVE.
4.Remuneration. The following is agreed to as the sole compensation and remuneration to REPRESENTATIVE for the performance of its obligations under this Agreement. Any obligation of CORE under this Section 4 shall be subject to all other provisions and terms of this Agreement:
4.1Amount of Commission. CORE agrees to pay REPRESENTATIVE a commission (the "Commission") on orders for the supply of Services in the Territory which are received by CORE from Customers as a direct result of REPRESENTATIVE's performance of its obligations under this Agreement (the "Orders"), subject to (a) the acceptance of such Orders by CORE, and (b) the receipt by CORE of the Order price and other charges. The Commission shall be in the amount contained in Exhibit “A” in the amount equal to the specified percentage of the Net Price actually received from time to time by CORE on orders from any customer for Services delivered by CORE. For purposes of this Agreement, the "Net Price" means the amount actually received by CORE, in the currency and at the location received by CORE, less reimbursable cost-of-service items such as travel living expenses, communication costs and outside services and subcontractor costs. In all cases, the Net Price will exclude any sales, excise, value added, and withholding taxes payable by CORE or withheld by Customer.
4.2Payment. Such Commission will become due and payable, by bank check or wire transfer, not later than the last day of the month following the month in which the Net Price for any particular Service delivered by CORE was actually received by CORE. Commissions shall be payable in United States dollars, or in the currency in which the payment from Customer was obtained. Payment shall be made to REPRESENTATIVE at its principal place of business or to bank accounts in REPRESENTATIVE's name. REPRESENTATIVE will furnish instructions in writing, in form and content acceptable to CORE and consistent with the preceding sentence, for payments of amounts due. CORE will not make payment to any assignee of REPRESENTATIVE, and will not be required to make payment to any person or entity designated by REPRESENTATIVE, other than REPRESENTATIVE.
4.3Adjustments in Commission. If, for any reason other than Warranty work, CORE is requested by a Customer to re-perform a Service on an un-reimbursed basis and/or at CORE's cost and expense, REPRESENTATIVE will be charged the amount of the Commission relative to such credit, price adjustment, and/or cost of such re-performance or replacement. Any such charge shall be setoff against and withheld from any Commissions or other amounts (if any) payable hereunder by CORE to REPRESENTATIVE; provided, however, that any amount of such charge which is not setoff against Commissions or other amounts then payable shall be a debt of REPRESENTATIVE to CORE payable immediately in full. Any such debt or setoff shall be owed and/or made in the currency in which the Net Price for the affected Service was originally received.
4.4Nonpayment when Commission is in Violation of Law. CORE shall have no obligation to credit or pay any Commission, remuneration, or reimbursement to REPRESENTATIVE when the inclusion of such a Commission, remuneration, or reimbursement in the price of a Service, or the payment by CORE of such commission, fee, remuneration, or reimbursement, is prohibited by or impermissible under the laws or regulations of the United States of America (“United States”), the Governing Law Jurisdiction as defined in Section 19.7or the Territory.
5.Reimbursable Expenses. All costs and out-of-pocket expenses incurred by REPRESENTATIVE in connection with the performance of its obligations under this Agreement and other activities shall be to REPRESENTATIVE's sole account and at REPRESENTATIVE's sole expense, and REPRESENTATIVE shall not be entitled to compensation or reimbursement from CORE for any such expenses, except as specifically provided in this Agreement. No such reimbursement shall be made, however, unless the incurrence of any out-of-pocket expenses expressly provided for under this Agreement is agreed to and approved by CORE in advance and in writing. Such reimbursement, if any, shall only be made against proper written receipts, with all back-up documentation and justification.
6.Right to Decline Orders. CORE reserves the right at its sole and exclusive discretion to accept or to reject for any reason any Customer or Order proposed by REPRESENTATIVE and such rejection shall not subject CORE to any claim for reimbursement, remuneration, commission, or otherwise.
7.Access to Books. REPRESENTATIVE shall, upon giving reasonable notice, have access to the books of OWEN during office hours to verify any amounts due to it under this Agreement. CORE shall, upon giving reasonable notice, have access to the books of REPRESENTATIVE during office hours to verify REPRESENTATIVE’s compliance with this Agreement, including Section 19.10.
8.Relationship between the Parties/Scope of Authority. REPRESENTATIVE will perform all services under this Agreement as an independent contractor. It is agreed that nothing in this Agreement shall be construed as constituting REPRESENTATIVE as an agent or legal representative of CORE for any purpose whatsoever or deemed to create an employer-employee, partnership, joint venture or principal-agent relationship between CORE and REPRESENTATIVE. Neither CORE, nor any affiliate, subsidiary or legal entity of CORE, shall be responsible in any way for any obligation, liability, debt, or contract incurred, assumed, or entered into by REPRESENTATIVE. REPRESENTATIVE shall have no authority, express or implied, to enter into any contract with any Customer (or any other client or customer) on behalf of CORE or obligate CORE to any Customer or any other client or customer. REPRESENTATIVE represents that it is now and agrees that it will continue during the term of this Agreement to be an independent merchant or enterprise within the meaning and requirement of any laws or customs of the Territory including those, if any, pertaining to inscription in mercantile registries.
9.Non-interference. CORE shall retain the full ownership of all of CORE's assets, both tangible and intangible, in the Territory, together with the name and goodwill under which CORE's business is carried out. CORE shall maintain its absolute and unrestricted right to manage the business of CORE, to sign all documents on its behalf, to decide on its behalf, and to carry on its business separately and solely according to its full power and discretion. REPRESENTATIVE shall have no right whatsoever to intervene in any of the matters of CORE. REPRESENTATIVE shall not under any circumstances whatsoever have any powers to enter into any agreements for or on behalf of CORE nor to bind CORE in the Territory or otherwise, and shall not in any way pledge CORE's or CORE's credit or enter into any obligation on behalf of CORE. The Parties hereby declare and undertake that they shall manage and operate their respective businesses at their own risk and expense and shall be liable only for their own respective debts, payables, rates, and other taxes of any kind and nature relating to their own business, and that the other Party shall in no way be responsible for any losses, damages, expenses due, debts, or liabilities of any kind or nature, incurred by the other Party; and each Party shall hold the other harmless and indemnified against any such losses, damages, expenses due, debts, or liabilities. Both Parties hereby expressly agree that they shall not incur any debt, liability, or obligation in the name of the other Party or its business, and neither REPRESENTATIVE nor CORE, nor their respective businesses, shall be responsible for any debt, liability, or obligation assumed or incurred by the other Party.
10.Confidential Information as Property of CORE. All documents and other materials made, compiled or copied by REPRESENTATIVE or made available to REPRESENTATIVE or its employees by CORE in connection with this Agreement and the transactions contemplated hereby, including but not limited to all price information and quotations regarding Services, Customer lists and Customer names, all engineering data, other technical information, and all other information which is not generally available in the public domain in the Territory and which is provided to REPRESENTATIVE (the “Confidential Information”) shall be deemed to have been furnished in confidence, and is and shall remain the exclusive property of CORE during the term of this Agreement and after its termination or expiration. Similarly, all data, market reports, analyses of competitors, and other information or reports which REPRESENTATIVE prepares for CORE, shall be confidential and shall be the exclusive property of CORE.
During the term of this Agreement and at anytime after the termination or expiration of this Agreement, REPRESENTATIVE shall not do anything, nor permit anything to be done, whether by way of reverse engineering or disassembling of any of the Confidential Information or anything else, including products, that would assist in the development of competing products or applications or the revelation of any of the Confidential Information. In particular, REPRESENTATIVE shall not be permitted to justify disregard of its covenants and agreements under this Agreement by using the disclosed subject matter to guide a search by it of publicly available information, selecting a series of items of knowledge from unconnected sources, and then fitting them together to create other products or applications.
11.Use and Disclosure of Confidential Information. REPRESENTATIVE shall treat as trade secrets and keep in strict secrecy and confidence all confidential information which it may acquire or develop during the term of this Agreement and will not during such term or thereafter use any such confidential information for its benefit nor disclose nor permit any of its employees, agents, contractors or officers to disclose such information or any part of it to any other person, firm, corporation or entity, except as such disclosure may be authorized in writing by an officer of CORE. The obligation of REPRESENTATIVE under this Section 11 shall survive the expiration, cancellation or termination of this Agreement.
12.Return of Confidential Information. Upon the termination of this Agreement or upon request, REPRESENTATIVE shall return all confidential information to CORE and certify in writing that it has returned all such information to CORE. The obligation of REPRESENTATIVE under this Section 12 shall survive the expiration, cancellation or termination of this Agreement.
13.Competitive Services. During the Term of this Agreement, REPRESENTATIVE shall not, without CORE's written consent, handle, sell, or act as representative for any lines, products, equipment, or services which are competitive to those which are sold or offered by CORE. REPRESENTATIVE shall keep CORE currently informed of the products and/or services, and the manufacturer or providers thereof, which REPRESENTATIVE is selling or authorized to sell, either as agent, representative, or dealer in behalf of other persons or entities. REPRESENTATIVE agrees that during the term of this Agreement and for a period of six (6) months thereafter, REPRESENTATIVE will not (to the fullest extent to which such restriction is not prohibited by applicable law) be engaged, directly or indirectly, either for its own account or as agent, employee, partner, officer, director, stockholder, sales representative, distributor, dealer or otherwise, of any person, firm, corporation, entity, or other enterprise, in any aspect of any business in the Territory which is competitive with CORE's business as represented by the Services.
14.Term. The term of this Agreement shall be for a three (3) year period from the Effective Date unless either Party has earlier terminated the Agreement in accordance with the provisions of Section 15 of this Agreement. Notwithstanding the foregoing, either Party may terminate this Agreement for any reason upon thirty (30) days written notice from one Party to the other.
15.Termination. This Agreement may be terminated immediately at any time:
a.by either Party in the event the other Party becomes insolvent or has a receiver appointed over the whole or any part of its assets or makes a composition with its creditors;
b.by either Party in the event either CORE or REPRESENTATIVE becomes bankrupt or files for bankruptcy or reorganization or liquidation;
c.by either Party in the event the other Party breaches, defaults in the performance of, or is noncompliance with, any of such Party's warranties, representations, covenants, or obligations in this Agreement (provided, however, that in the event such breach, default, or non-compliance is capable of remedy but is not remedied within thirty (30) days of the same being notified to the Party in default, such termination shall be effective upon the expiration of such thirty (30) day period); or
d.by CORE in the event REPRESENTATIVE breaches, defaults in or is non-compliance with any of its obligations under Section 19.10 of this Agreement, including providing the annual certification under 19.10(d), or under any other provision elsewhere providing for immediate termination by CORE of this Agreement.
Neither Party shall by reason of the termination of this Agreement be liable to the other for compensation and/or reimbursement of damages either on account of present or prospective revenue, or profits on account of expenditures, investments, or commitments made in connection therewith or in connection with the establishment, development, maintenance, or goodwill of either Party, or on account of any other cause or matter whatsoever, except as expressly stipulated herein, and except that such termination shall not affect the rights or liabilities of the Parties with respect to any indebtedness then owing by CORE or REPRESENTATIVE.