EXHIBIT 10.2
EXCLUSIVE SALES REPRESENTATIVE
AGREEMENT
This Agreement, dated April 13, 1999, by and between CARALOE,
INC., a Texas corporation ("Company"), having its principal address at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇ CORPORATION
("Representative"), having its principal address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
#▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
W I T N E S S E T H:
WHEREAS, Company manufactures and sells ingredients and products
(collectively, the "Products") for cosmetic, health care and
nutritional purposes; and
WHEREAS, Company desires to engage Representative as an
independent representative for the purpose of soliciting customers for
and selling the Products in the U.S.A.; and
WHEREAS, Representative desires to represent Company in
soliciting customers for and selling the Products in Minnesota, North
Dakota, South Dakota, Montana, Wyoming, Idaho, Washington, Oregon,
Nevada, Colorado, New Mexico, Oklahoma, Kansas, Nebraska, Iowa,
Missouri, Arkansas, Illinois, Indiana, Ohio, Michigan, Wisconsin, Utah
and Arizona (the "Territory") and is prepared to commit to use its
best efforts in this regard;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Appointment of Representative and Territory. Company hereby
appoints Representative to act as exclusive sales representative for
the sale of the Products in the Territory, and Representative hereby
accepts such appointment.
2. Term. The initial term of this Agreement shall commence on
the date of this Agreement and shall expire at midnight on April 12,
2000. Following the initial term, this Agreement will be
automatically renewed on the same terms and conditions set forth
herein for successive renewal terms of one year each, unless either
party hereto gives written notice of termination to the other party at
least ninety (90) days prior to the end of the initial term or the
then-current renewal term, in which case this Agreement shall
terminate at the end of such term.
3. Duties of Representative. Representative shall use its best
efforts to promote, develop and increase sales of the Products in the
Territory in accordance with the general marketing strategy set forth
by Company from time to time. Representative's duties shall include,
but shall not be limited to:
(a) assessing the market potential of the Products in the
Territory;
(b) advising Company on the suitability of its promotional
materials and the effectiveness of its general
marketing strategy;
(c) actively soliciting orders for and promoting the
Products;
(d) cultivating existing customers and potential customers
for the Products;
(e) initiating contacts with potential customers for the
purpose of selling the Products to them;
(f) participating in negotiations between customers and
Company, but only at the request and direction of
Company;
(g) advising customers with respect to technical or sales
information prepared by Company;
(h) acting as a general liaison between customers and
Company; and
(i) assisting Company in resolving controversies that may
arise with customers in the Territory during the term
of this Agreement.
4. Acceptance of Orders and Prices.
(a) Representative shall have no power or authority to
enter into any contracts on Company's behalf or to bind Company in any
way whatsoever. Representative shall submit all orders that it
receives for Products to Company for acceptance or rejection.
(b) Representative shall transmit all orders for Products
to Company by telefax or other prompt means. Company shall transmit
its acceptance or rejection of each order to Representative by telefax
or other prompt means. Company will not reject orders arbitrarily but
only for customer credit, manufacturing or other valid reasons. All
orders for Products that are not affirmatively rejected by Company
within thirty (30) days after their receipt by Company shall be deemed
accepted.
(c) Representative shall inform customers that orders for
Products are sought and received subject to acceptance by Company and
upon Company's standard terms and conditions.
(d) In dealing with customers or potential customers,
Representative shall quote prices in accordance with the applicable
price list or price quotations supplied by Company and shall not grant
any deductions, discounts, allowances, rebates, requests to return
products, or changes in terms of payment or other terms and conditions
without Company's prior, specific, consent in each case.
(e) Company shall provide Representative with Company's
current price list for the Products in the Territory in U.S. dollars
at the time of execution of this Agreement and thereafter whenever
there is any change in such list or Representative requests such a
list.
5. Commissions.
(a) Company shall pay Representative a commission in U. S.
dollars equal to 10% of Representative's Net Sales, as defined in
paragraph 5(b) below, subject to the provisions of paragraph 5(e)
below.
(b) As used in this Agreement, "Net Sales" shall mean the
invoice price of the Products sold by Representative, less any
customer discounts, rebates, promotional allowances and credits for
product returns allowed by Company and excluding shipping, insurance,
duties and taxes (collectively, "the Allowable Deductions"). All
amounts referred to in this subparagraph shall be in U. S. dollars.
(c) Representative's right to receive commissions shall
accrue upon Company's receipt of payment by customers of the invoices
on which such commissions are based. Company shall pay commissions
owed to Representative within ▇▇▇▇▇ (30) days after they accrue.
(d) Company shall provide to Representative with each
commission payment a brief statement setting forth the invoice price
of the Products sold, the Allowable Deductions, the resulting Net
Sales amount, and the amount of the commission payable to
Representative, as well as the total amount of Representative's Net
Sales for the year to date.
(e) Representative shall not be entitled to receive the
full amount of the commissions payable on sales of Products that have
ultimate destinations outside the Territory but shall share such
commissions with Company's local representatives for such destinations
in proportions that shall be negotiated and mutually agreed upon by
Company, Representative and such local representatives.
6. Shipping/Packing. Company shall be solely responsible for
the packing, shipping, and invoicing of the Products.
7. Promotional and Technical Materials. Company shall, at its
expense, furnish Representative with such promotional and technical
materials as are appropriate for use in the Territory and in such
quantities as may reasonably be needed by Representative in the
performance of its duties hereunder.
8. Advertising, Trade Shows, and Other Special Services
Requested by Company.
(a) If Company requests that Representative engage in
certain advertising to promote the Products in the Territory,
Representative shall do so, and Company shall bear the costs of such
requested advertising. This subparagraph shall not be construed to
limit Representative's right to conduct its own advertising, at its
own expense.
(b) If Company so requests, Representative shall
participate in trade shows, arrange special promotional events (such
as, but not limited to, cocktail parties for customers), conduct
special studies or perform other special services that are not part of
Representative's normal and regular duties. In such event, Company
shall compensate Representative for such additional services on a
basis to be determined by mutual agreement of the parties on a case-
by-case basis and shall also reimburse Representative for all
reasonable out-of-pocket expenses incurred by it in performing such
additional services promptly after receiving appropriate evidence of
such expenses.
9. Warranties. Representative is not authorized to and shall
not make or modify any warranties on behalf of Company, unless and
except to the extent that Company expressly authorizes it in writing
to do so.
10. Expenses. Except as otherwise expressly provided in this
Agreement, Representative shall bear all expenses incurred by it in
carrying out its obligations under this Agreement.
11. Confidentiality. During the term of this Agreement and at
all times thereafter, Representative shall not, and shall not permit
any of its employees or agents to, disclose to any third parties any
technology, know-how, technical information, trade secrets or other
confidential information of Company, except with the express written
consent of Company or to the extent required by applicable law.
12. Exclusivity.
(a) Company has not granted and shall not grant to any
other person or entity the right to act as Company's representative
for the sale of Products in the Territory during the term of this
Agreement.
(b) During the term of this Agreement, Representative shall
not, in the Territory, directly or indirectly, sell, offer for sale,
promote, or represent anyone other than Company for the sale or
promotion of, any products or services that are competitive with any
of the Products or services of Company.
13. Early Termination. Notwithstanding the provisions of
paragraph 2 above, either party shall be entitled to terminate this
Agreement immediately by giving written notice of termination to the
other party at any time, if:
(a) the other party commits a material breach of this
Agreement and fails to cure such breach within thirty (30) days
after receiving written notice from the terminating party
identifying the breach and requiring that it be cured, or
(b) the other party dies (if such party is an individual),
is liquidated or dissolved (if such party is an entity), makes an
assignment for the benefit of creditors, files a petition for
relief under the Federal Bankruptcy Code or any other present or
future federal or state insolvency, bankruptcy or similar law
(collectively, a "Bankruptcy Law"), is the subject of an
involuntary petition for relief filed under any applicable
Bankruptcy Law and such petition is not dismissed within sixty
(60) days after the filing thereof, or is the subject of an order
for relief entered under any applicable Bankruptcy Law or of an
order of receivership entered by any state or federal court.
14. Effect of Termination. Following any termination of this
Agreement, neither party shall have any further liability or
obligation to the other party hereunder or in respect hereof, except
that:
(a) the provisions of paragraphs 11, 14, 15, 17-20 and 22-
27 hereof shall survive any termination of this Agreement and
shall continue to be binding on the parties hereto;
(b) each party shall continue to have all rights and
obligations that shall have accrued at or prior to the
termination of this Agreement, including but not limited to any
rights and obligations resulting from any breach of this
Agreement;
(c) the termination of this Agreement shall not terminate
Representative's right to receive commissions in accordance with
paragraph 5 above on Representative's sales of Products for which
Company receives orders on or before the date of termination of
this Agreement, even if Company receives payment for such
Products after such date of termination; and
(d) the termination of this Agreement shall not terminate
Company's right to deduct all Allowable Deductions in accordance
with paragraph 5 above in determining the Net Sales on which
commissions are payable to Representative under this Agreement,
even if such Allowable Deductions arise after the date of
termination of this Agreement.
15. No Commissions on Orders Received after Termination of
Agreement. Representative will not be entitled under any
circumstances to receive any commissions on sales of Products for
which orders are received by Company after the date of termination of
this Agreement.
16. Independent Contractor Relationship. The parties to this
Agreement are independent contractors, and nothing in this Agreement
shall be construed to create any partnership, joint venture or
employer-employee relationship between them. Neither party shall have
the right, power or authority to bind or obligate the other party, and
neither party shall hold itself out to any third party as having such
right, power or authority, in the absence of express written
authorization from the other party. Representative shall be
responsible for reporting and paying all taxes that are payable with
respect to any income received by it from Company pursuant to this
Agreement.
17. Equitable Relief. In recognition of the fact that a breach
by Representative of the provisions of paragraph 11 above will cause
irreparable damage to Company for which monetary damages alone will
not constitute an adequate remedy, Company shall be entitled as a
matter of right (without being required to prove damages or furnish
any bond or other security) to obtain a restraining order, an
injunction or other equitable relief from any court of competent
jurisdiction restraining any further violation of such provisions by
Representative and/or requiring Representative to comply with such
provisions. Such right to equitable relief shall not be exclusive but
shall be in addition to all other rights and remedies to which Company
may be entitled at law or in equity.
18. Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Texas, without regard to the principles of conflicts of laws thereof.
19. Dispute Resolution. Except as otherwise provided in
paragraph 17 above, any dispute arising under or with respect to this
Agreement shall be resolved by binding arbitration in Dallas County,
Texas, pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. The parties shall be entitled to conduct
reasonable discovery, in accordance with the Federal Rules of Civil
Procedure, prior to the arbitration hearing, and the Federal Rules of
Evidence shall be applicable to the arbitration hearing. The
arbitration hearing shall be conducted by a panel of three
arbitrators. Each party shall select one arbitrator, and the two
arbitrators selected by the parties shall select the third arbitrator.
If the two arbitrators selected by the parties are unable to agree on
a third arbitrator, the parties (or, if the parties fail to agree, the
American Arbitration Association) shall select the third arbitrator in
the manner specified for selecting a sole arbitrator in Rule 13 of the
above-mentioned Commercial Arbitration Rules. The decision of the
arbitrators shall be final, binding on the parties and enforceable by
any court of competent jurisdiction.
20. Notices. All notices required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have
been given on the earlier of the date of receipt by the party to whom
the notice is given or when mailed by certified or registered United
States mail, postage prepaid, addressed to the appropriate party at
the address shown for such party in the introductory paragraph of this
Agreement or at such other address as such party shall have designated
by written notice given to the other party in accordance with this
paragraph.
21. Integration and Modification. This Agreement contains the
entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes any and all prior agreements and
understandings, whether written or oral, between such parties relating
to such subject matter. No modification, alteration, amendment or
supplement to this Agreement shall be valid or effective unless the
same is in writing and signed by the party against which it is sought
to be enforced.
22. Gender and Number. In this Agreement, pronouns of any
gender shall be construed to include any other gender, and words in
the singular form shall be construed to include the plural and vice
versa, unless the context requires otherwise.
23. Severability. If any provision of this Agreement is held to
be unenforceable, this Agreement shall be considered divisible, and
such provision shall be deemed inoperative to the extent it is
unenforceable, and in all other respects this Agreement shall remain
in full force and effect; provided, however, that if any such
provision may be made enforceable by limitation thereof, then such
provision shall be deemed to be so limited and shall be enforceable to
the maximum extent permitted by applicable law.
24. Waiver. No delay on the part of either party in exercising
any right, power or remedy that it may have in connection herewith
shall operate as a waiver thereof, nor shall any waiver thereof or any
single or partial exercise thereof preclude any further exercise
thereof or the exercise of any other right, power or remedy. No
waiver of any provision of this Agreement, and no consent to any
departure therefrom, shall be effective unless such waiver or consent
is in writing and signed by the party against whom it is sought to be
enforced, and no such waiver or consent shall be effective except with
respect to the particular case and purpose for which it is given.
Nothing in this paragraph shall be deemed to negate or override any
provision of this Agreement that establishes a specific period of time
for the performance of any act.
25. Assignment. This Agreement may not be assigned by either
party hereto without the written consent of the other party, and any
assignment attempted in violation of this paragraph shall be void and
ineffective.
26. Successors and Assigns. Subject to the other terms and
provisions hereof, this Agreement shall inure to the benefit of and be
binding on the parties hereto and their respective heirs, successors
and permitted assigns.
27. Headings. The headings of the various paragraphs of this
Agreement have been inserted for convenient reference only, shall not
be construed to enlarge, diminish or otherwise change the express
provisions hereof, and shall not be considered for any purpose in
interpreting this Agreement.
28. Counterparts. This Agreement may be signed in counterparts,
each of which shall be deemed an original and all of which shall
together constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first set forth above.
Company: CARALOE, INC.
By:
▇▇▇▇ ▇▇▇▇
General Manager
Representative: ▇▇▇▇▇ CORPORATION
By:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
