Exhibit 3.3
SALES REPRESENTATION AGREEMENT
This is a Sales Representation Agreement (the "Agreement") made and entered
into this 29th day of June 1999 between Darwin Networks ("Darwin"), a Delaware
Corporation, located at 0000 X. Xxxxxx, Xxxxx 000 Xxxxxxxxxx, Xxxxxxxx 00000 and
TEN Private Cable Systems Inc. (the "Sales Representative"), a Canadian
corporation located at 0000 Xxxxxx Xxx., Xxxxxxxxx XX X0X 0X0.
Recitals
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X. Xxxxxx provides high-speed data services and Internet access (the "Darwin
Services") services to its customers through various telephone company,
cable and wireless sources, including without limitations, analog and
digital telephone systems via digital subscriber line (xDSL) technology.
X. Xxxxxx wishes to retain Sales Representative upon the terms and conditions
set forth below to initiate contracts for the introduction of Darwin
Services to owner/operators in the lodging (hotel/motel) industry (i.e.
"Operators") who wish to offer their guests the opportunity to utilize
their telephone systems for high-speed data services and Internet access.
NOW, THEREFORE, in consideration of the foregoing and the covenants set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Darwin and the Sales Representative agree as
follows:
1. Appointments. Subject to the terms and conditions of this Agreement, Darwin
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hereby appoints the Sales Representative, as an independent contractor, to
solicit orders for the sale of Darwin's Data Services and for the sale of such
other services, products and Darwin Services as may, in the discretion of
Darwin, from time to time be brought under of deleted from this Agreement, all
of which are referred to as "Darwin Services". The Sales Representative accepts
such appointment.
2. Area of Primary Sales Responsibility. The Sales Representative's area of
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its primary sales responsibility (the "Marketing Area") is described in Exhibit
"A".
3. Sales Efforts
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(a) The Sales Representative agrees to:
(1) promote diligently the sale of Darwin Services in the Marketing
Area in accordance with announced policies of Darwin, and
increase the volume of sales and customers in the Marketing Area,
considering the business potential and competitive circumstances
in the Marketing Area;
(2) achieve such periodic sales goals as Darwin may reasonable
determine and to cooperate with Darwin in reviewing and planning
the Sales Representative's efforts to achieve such goals;
(3) maintain and equip at its own expense a business establishment
having facilities and provide such sales and service personnel as
may be reasonably satisfactory to Darwin;
(4) establish and maintain at its own expense a training program to
instruct and educate its employees regarding the sale, use and
servicing of the Darwin Services, in this respect the Sales
Representative will at its own expense cause selected employees
to attend selected Darwin-sponsored training programs.
(5) perform such start up services and other customer services
(unless alternate services are approved by Darwin) as may be
required to effectively promote good customer relationships and
the sale and servicing of the Darwin Services, whether or not the
Sales Representative was involved in the sale of the Darwin
Services;
(6) distribute at its own expense advertising material furnished by
Darwin to those who may purchase or influence the purchase of the
Darwin Services;
(7) comply with Darwin policies and requests concerning the Darwin
Services and the performance of the Sales Representative's
obligations under this Agreement.
(b) The Sales Representative and its employees will conduct themselves in
support of Darwin's policies, products and business reputation and
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will adopt no sales methods which are contrary to the policies of
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Darwin. The Sales Representative will not use, either orally or in
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writing, describe any of the Darwin Services contrary to those
descriptions contained in Darwin's advertising materials furnished to
the Sales Representative and will not make any representation or
warrant regarding Darwin Services except as provided for any Network
Services Agreement.
(c) The Sales Representative will provide Darwin with such financial
statements and make such reports to Darwin as requested by Darwin
regarding any matters of legitimate interest to Darwin, such as, for
example, Sales Representative's activities under this Agreement,
customers contacted, orders received, unsuccessful solicitations and
sales completed. Darwin may also during regular business hours review
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with the Sales Representative such of the records, documents and
matters that relate to the sale of the Darwin Services and performance
of Sales Representative's obligation under this Agreement.
(d) The Sales Representative will bear all expenses of nay nature in the
conduct of the business.
4. Prices and Terms of Sale. All Darwin Services will be offered for sale by
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the Sales Representative at current selling prices and on such terms and
conditions as may be established periodically by Darwin.
5. Sale Procedure. All proposals to perspective purchasers (an "Operators")
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for sale of the Darwin Services will be submitted on proposal forms and Networks
Services Agreements (an "NSA") supplied by Darwin and in accordance with Darwin
policies and practices. All order for Darwin Services
will be made out to Darwin, the original of each order will be forwarded to
Darwin promptly. Whenever feasible, orders will be taken on Darwin's proposal
form/NSAs. All orders are subject to approval and acceptance solely by Darwin at
its home office. Darwin will not be liable to the Sales Representative or to the
Operator in any order not accepted by Darwin or delay or inability to perform
any accepted order for any reason.
6. Compensation.
(a) The Sales Representative's sole compensation will be in the form of
commissions on consummated sales of Darwin Services pursuant to an
executed Network Services Agreement (NSA) substantially in the form of
Exhibit A attached hereto, at such rates and under such policies
respecting commissions as are provided in Exhibit A hereto, and a
otherwise, including division of commissions among other sales
representatives and persons contributing to any sale.
(b) In the event of any controversy between the Sales Representative and
any other person or persons as to whether the Sales Representative is
entitled to all or any part of any commissions or discount, Darwin
will decide such controversy and will award to the Sales
Representative or such other person or persons such part of the
commissions of discount as Darwin will determine. The determination of
Darwin will be final and conclusive upon the Sales Representative to
Darwin.
(c) No commission will be due on (i) any other or NSA cancelled or
purported to be cancelled by and Operator. Any commission or credit
paid or granted for any such matters will be returned promptly by the
Sales Representative to Darwin.
(d) Commission payable, less any offset or charge backs, will be paid by
Darwin on or before the fifteenth (15/th/) of the month following
receipt by Darwin of an approved, executed NSA.
(e) The Sales Representative will not be entitled to any commissions for
sales to buyers who are or many be regarded by Darwin as national or
international class Operators, to buyers located in open or unassigned
marketing areas, or to domestic or foreign Operators buying for an
export destination. Commissions, if any, on such sales will be subject
to separate prior written agreement with Darwin in each case.
7. Darwin Sales Assistance. Darwin agrees to:
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(a) Refer to the Sales Representative all inquiries about the Darwin
Services received from potential Hotel Operators in the Marketing
Area, except inquiries from Operators.
(b) Furnish to the Sales Representative at reasonable prices such
quantities of Darwin's proposal forms/form NSAs, advertising material
and the like as Xxxxxx xxxxx reasonably necessary, and
(c) Advertise the Darwin Services as Xxxxxx xxxxx advisable.
8. Confidential Information. All material and data furnished by Darwin to the
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Sales Representative, except promotional and advertising material, will be
considered owned by Darwin and furnished in confidence for the sole personal
information for the Sales Representative and its employees for necessary use in
sales efforts under this Agreement. Such material and data will not be used in
any way that is detrimental to Darwin or unnecessary for the purpose of this
Agreement or contrary to any specific instructions of Darwin.
9. Sales Representative Independent Contractor. This Agreement, and anything
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done by the Sales Representative of Darwin in any capacity. The Sales
Representative has no authority. Any persons employed by the Sales
Representative will be the agents or employees of the Sales Representative and
not of Darwin. The Sales Representative will be responsible for any and all its
acts or omissions and those of his agent or employees. Sales Representative
agrees to indemnify and save harmless Darwin from all losses, liabilities and
costs incurred by Darwin on account of any acts or omissions of the Sales
Representative or any of it agents or employees.
10. Trade Names. The Sales Representative will not use the trade name "Darwin
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Networks" or any other trademark or trade name of Darwin (whether registered or
not) or any simulation of them as part of the Sales Representative's firm or
trade names. Any other use of the trade name "Darwin Networks" or any other
trademark or trade name of Darwin will require the prior written authorization
of Darwin. Any authorized use of such trademark or trade names will be only in
conjunction with the sale or servicing of the Darwin Services. Any authorization
granted maybe revoked at any time by Darwin and in all events will terminate
upon the termination of this Agreement. The Sales Representative will then
immediately take such action as is necessary to eliminate such trademarks or
trade names from its name, signs stationery, telephone listings and from any
other use made thereof in connection with its business. The Sales Representative
will not register or attempt to register or assert ownership in any of Darwin's
trade names, trademarks or other marks or any simulation of them.
11. Competitive Services. Since it would conflict with Sales Representative's
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sales efforts for Darwin Services, the Sales Representative will not represent
or sell either as principal, agent or otherwise, nor will it have (or any of its
owners) a financial or other interest in the manufacture or sale of any Darwin
Services or product which, in the judgement of Darwin, is competitive with any
product or Darwin Services or product manufactured or sold by Darwin, whether or
not included under this Agreement, without prior written consent of Darwin.
Darwin approves TEN to be able to provide their own service using the ATCOM
IPORT solution. This is the only other service Darwin agrees to release TEN on
the competitive services section 11.0 in this contract.
12. Termination.
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(a) Either party hereto may terminate its Agreement without cause at any
time on thirty- (30) days' written notice to the other party.
(b) Darwin will have the right, at its option, to terminate this Agreement
upon fifteen- (15) day's written notice to the Sales Representative if
any of the following events occur. If the event Sales Representative
becomes insolvent, is adjudged bankrupt, files or has filed against it
any petition under any Federal Bankruptcy law or State insolvency law,
has a receiver appointed
for its business or property makes an assignment for the benefit of
creditors, or fails to pay Darwin promptly for any indebtedness due
Darwin.
(c) Darwin will have the right, at its option to terminate this Agreement
upon thirty- (30) day's notice if any of the following events occur.
If Sales Representative assigns this Agreement without the written
consent of Darwin, upon any change in the composition of any Sales
Representative partnership or upon any transfer, voluntary or by
operation or flaw, of a majority of the voting stock of any Sales
Representative corporation, if the Principal Manager (s) named below
is not longer actively engaged in the management of the Sales
Representative on a full time basis, if there is a change in full-time
active management of the Sales Representative; or upon Sales
Representative's breach of any other provisions of this Agreement not
cured or corrected within ten (10) days of written notice of such
breach.
13. Effect of Termination
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(a) After notice of termination of this Agreement, the Sales
Representative will have ten (10) days to supply Darwin with complete
copies of written proposals issued to customers. The Sales
Representative will be entitled to its share of commissions only on
orders based upon said proposals and accepted within sixty (60) days
of each such notice of termination or such extension of this 60 day
period as may be granted by Darwin under special circumstances.
Commissions will be payable on such orders at the time and under the
conditions as commissions would be payable if this Agreement had not
been terminated. Acceptance by Darwin on such orders or referral of
inquiries by Sales Representative to Darwin after termination will not
be considered a renewal or extension of t his Agreement. The Sales
Representative will have no claims for commissions on order thereafter
obtained by Darwin regardless of the work or effort previously
expended by the Sales Representative. Where a new sales representative
is appointed to succeed as sales representative who has been
terminated, such new sales representative will be paid a share of the
total commission as determined by Darwin, commensurate with such work
as he may perform.
(b) Upon termination of this Agreement, the Sales Representative will
return to Darwin all confidential Data, engineering data, technical
data, price lists, customer lists and all other property of Darwin and
copies of and excerpts from all of the above.
(c) Sales Representative will also remove from its place of business, its
listings, letterheads, catalogs and advertising and all reference to
Darwin. It will not thereafter use any name, symbol, trademark or
trade name tending to give the impression that the relationship
between Darwin and the Sales Representative under this Agreement still
exists, or do any other acts tending to impair trademarks, trade name
or confidential material belonging to Darwin.
(d) Termination will not release either party from payment of monies owing
or from other unsatisfied obligations. Upon notice of termination, all
monies, if any owed Darwin will be immediately due and payable.
14. Miscellaneous.
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(a) This Agreement will be interpreted according to laws of the
Commonwealth of Kentucky. If any portion of this Agreement is invalid
under any federal, state, local or other law or regulations, only such
invalid portion will be ineffective and void.
(b) This Agreement will be non-assignable and not-transferable by the
Sales Representative unless the Sales Representative will first obtain
the prior written consent of Darwin.
(c) This Agreement cancels and supersedes all prior agreements, verbal or
written, between the Sales Representative and Darwin.
(d) THE COMPLETE AGREEMENT BETWEEN THE SALES REPRESENTATIVE AND DARWIN IS
CONTAINED HEREIN AND NO ADDITIONAL OR DIFFERENT PROVISION, TERM OR
CONDITION ASSERTED BY THE SALES REPRESENTATIVE WILL BE BINDING UNLESS
AGREED TO IN WRITING BY DARWIN.
(e) The failure of either party to insist upon strict performance of any
provision of this Agreement by the other will not constitute a
continuing waiver or affect either party's right to insist on strict
performance. No waiver by either party of any breach by the other of
any provisions of this Agreement will be considered a waiver of any
other or subsequent breach.
IN WITNESS WHEREOF, the Sales Representative has duly executed this Agreement
this 29/th/ day of June 1999, effective upon acceptance by Darwin.
TEN Private Cable Systems Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxx XX X0X 0X0
By: /s/ Xxxx Xxxxxx
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Title: Xxxx Xxxxxx CEO
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ACCEPTED Darwin Networks Inc.
August 17, 1999
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By: /s/ Xxxxx Xxxxxxxxxxxx
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Title: Xxxxx Xxxxxxxxxxxx Vice President
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Exhibit A
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Commission Schedule
1. Upon Sales Representative's delivery of an acceptable NSA, Sales
Representative will be due a commission of $10 for each tenantable apartment
account/hotel room, payable as follows:
(a) $5 for 1/2 (50%) of the total number of apartment-tenants/hotel rooms
(e.g., if the MDU/Hotel has 200 tenants/rooms, Darwin will pay $500
upon receipt of the contract (100x$5).
(b) $5 for the other 1/2 (50%) of the apartment-tenants/hotel rooms at
such time as the Operator's first tenant/hotel room is connected
(100x$5).
2. Darwin will pay to Sales Representative a residual equal to $1 for
each night the service is purchased. For example, if Hotel X sells high-speed
access to 5 rooms during month, Darwin will pay the Sales Representative a
residual commission of $5 for that property for that month. In addition, Darwin
will pay the Sales Representative a 25% commission on all GROSS revenues
received from the sale of high-speed access to the Hotel's meeting rooms. In the
event that the Hotel contract requires that Darwin pay the Hotel a percentage
for the meeting room revenue, Darwin will subtract that % from the commission
due the Sales Representative. For example, if Hotel X requires that Darwin pay a
commission of 20% of the GROSS revenues for meeting room revenues, Darwin would
then pay the Sales Representative a commission of 5%. Darwin will not exceed a
25% revenue share for any meeting room revenue.
3. In the event that the Sales Representative is able to close a contract
for nightly room revenue that exceeds $9.95 per night, Darwin agrees to revenue
share 50/50 on the amount over $9.95. For example, if contract is for $15 per
night, Darwin and the Sales Representative will share 50/50 on the revenue for
the additional $5.05.
4. Marketing area to consist of North America.
5. Offsets and chargebacks consist solely of non-payments by hotel guests
and customers that do not pay Darwin for its services.
