THE ANTIGUA GROUP, INC. Ex. 10.8
INDEPENDENT SALES REPRESENTATIVE
AGREEMENT
THIS AGREEMENT is entered into at Scottsdale, Arizona, on
______________ ____, 199__, between THE ANTIGUA GROUP, INC., a Nevada
Corporation, (hereinafter referred to as the "Company") and
__________________________________________ (hereinafter referred to as
"Representative").
I. APPOINTMENT
1.01 Appointment. Effective ____________________ ____, 199__, the
Company hereby appoints Representative as its independent sales representative
and grants Representative, upon the terms and conditions hereinafter set forth,
the right to solicit from past, current and prospective customers of the
Company, (the "Customers") orders for goods from the Company's general product
categories produced, manufactured or sold by the Company (the "Products").
"Products" do not include "Closeouts" or "Licensed Products", as defined in
Section 2.01. All orders so solicited shall be subject to final acceptance by
the Company. Representative hereby accepts such appointment and agrees to
diligently solicit orders for the Products.
1.02 Area of Responsibility. Subject to the other terms and conditions
hereof, Representative shall solicit orders for the Products from Customers
located only in the Company's Representative Geographic Area of (the "Area").
The Representative hereby has no exclusive rights to solicit orders for the
Products in the Area, and the Company reserves the right to have more than one
sales representative in the Area.
II. REPRESENTATIVE'S RIGHTS, DUTIES AND AUTHORITY
2.01 Compensation. The Company agrees to pay to Representative, as full
compensation for all selling and related services to be rendered by
Representative, a commission of 10% of all Net Sales, as defined in Section
2.02, of Products; except that the commissions paid by the Company to
Representative for sales of Closeouts and Licensed Products shall be determined
solely by the Company, but in no event shall be less than 3% or greater than 8%
of the Net Sales of the Closeouts or Licensed Products, as defined in Section
2.02. Commissions for a sale shall be due and payable on the 20th day of the
month following the sale. If any account created by Representative's sale of
Products, Closeouts or Licensed Products is uncollectible within the terms and
not paid within the limits fixed, any commission previously paid to
Representative for the sale giving rise to such account shall be refunded to the
Company by Representative via a cashier's check within 30 days after Company has
notified Representative of such uncollectible account. If Representative fails
to refund any such commission to the Company within the 30-day period, the
Company may, in its sole discretion, deduct an amount equal to 110% of such
commission from any future commission payments due to Representative.
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2.02 "Closeouts"; "Licensed Products"; "Invoice Price"; "Net Sales".
For the purposes of this Agreement, "Closeouts" shall mean Products which are no
longer regarded by the Company as current items or are marketed at discount. For
the purposes of this Agreement, "Licensed Products" shall mean Products bearing
logos or other trademarked items for which the Company has a license from a
third party (i.e. The National Football League). For the purposes of this
agreement, "Invoice Price" shall mean the price of the Products, Licensed
Products or Closeouts which are billed to the Customers, less any applicable
discounts. For purposes of this Agreement, "Net Sales" shall mean the Invoice
Price to Customers of Products, Licensed Products or Closeouts FOB the Company's
point of shipment, less all costs of insurance, discounts, sales returns and
allowances.
2.03 Limitations of Representative's Authority. Representative hereby
agrees with the Company as follows:
(a) Representative shall have no authority to make quotations of prices
or terms (including warranties) other than those authorized in writing by the
Company, or to accept orders or make commitments in behalf of the Company.
(b) Except as otherwise requested in writing by an officer of the
Company, Representative shall have no authority under any circumstances to: (i)
collect money; (ii) receive or accept payments on behalf of the Company; or
(iii) endorse or deposit any checks or other instruments of payment for the
account of the Company.
(c) Representative shall not extend any warranty or guarantee regarding
the Products, make any other representation regarding the Products, or assume
any liability on behalf of the Company, provided, however, that Representative
may distribute current literature supplied by the Company containing
representations as to the Products.
(d) Representative shall not have any authority to make any commitment
and/or obligation on behalf of the Company to anyone for any purpose under any
circumstances other than those authorized in writing by an officer of the
Company.
(e) Representative will not hold or sell inventory that is owned by the
Company, other than samples provided by the Company to the Representative for
use as sales aids.
(f) The Company does not require the Representative to perform work
exclusively for the Company.
(g) The Company does not provide the Representative with any business
registrations or licenses required to perform the specific services set forth in
this Agreement.
(h) The Company does not pay the Representative a salary or hourly
rate.
(i) The Company does not provide tools to the Representative.
(j) The Company does not dictate the time of Representative's
performance.
(k) The Company pays the Representative in the name appearing on this
Agreement.
(l) The Company will not combine business operations with the
Representative.
2.04 Trade Secrets. Representative shall keep confidential and, except
as otherwise authorized in writing by an officer of the Company, shall not
during the term of this Agreement or at any other time thereafter use, divulge,
furnish or make accessible to anyone other than the
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Company, its directors and officers, any knowledge or information (including
customer lists) with respect to any confidential or secret aspect of the
business, products or activities of the Company, its affiliates or subsidiaries.
2.05 Competitive Products. Representative, or any entity in which
Representative is an employee, agent, owner, partner, shareholder, affiliate,
officer or director, shall not, during the term of this Agreement, directly or
indirectly market or sell products to Customers in the Area similar to or
competitive with the Products. Representative shall be free to market and sell
other products not in competition with the Products, provided that the
Representative shall not undertake to market or sell such noncompetitive
commodities to such an extent as to interfere with Representative's full and
effective performance of all Representative's duties and functions as described
in this Agreement.
2.05 Insurance. Representative shall maintain public liability
insurance with a responsible insurance company of good repute, with bodily
injury limits of at least One Hundred Thousand Dollars ($100,000)/Three Hundred
Thousand Dollars ($300,000) and property damage limit of at least Twenty-Five
Thousand Dollars ($25,000) on any motor vehicle operated by Representative or
Representative's agents or employees in the performance of this Agreement
wherein the Company shall be named as additional insured. The Representative
shall from time to time furnish certificates evidencing such coverage upon
request of the Company.
III. RESERVED POWERS OF THE COMPANY
3.01 Acceptance of Orders. Notwithstanding anything to the contrary
contained herein, the Company shall have the right to accept or reject, in whole
or in part, any or all orders received from or through Representative, and to
make such allowances or adjustments and to accept such cancellations and returns
with respect to such orders as it deems necessary or advisable; and the Company
shall not be liable to Representative for any loss or damage resulting from any
such action so taken. All purchase orders are subject to final acceptance by the
Company in Scottsdale, Arizona.
3.02 Price and Product Modification. All sales made by Representative
shall be at prices and discounts established by the Company and in effect at the
time of shipment, it being understood that such prices and discounts are subject
to change by, and at the sole discretion of the Company at any time without
prior notice to Representative and without liability on the part of the Company
to Representative.
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IV. TERM AND TERMINATION
4.01 Term. Representative's appointment under this Agreement shall
commence on the effective date stated in Paragraph 1.01 and continue for one
year. Either party may, upon 30 days written notice, terminate this Agreement
with or without cause.
4.02 Effects of Termination. In the event of termination of the
Agreement, the Company shall not, by reason of the termination of this
Agreement, be liable to the Representative for compensation, reimbursement, or
damages of any kind, including but not limited to: (i) Representative's present
or prospective profits on sales or expenditures, investments, or commitments
made in connection therewith; (ii) expenses, investments or commitments made by
Representative in connection with the establishment, development or maintenance
of the business or goodwill of the Company or Representative; or (iii) on
account of any other cause or thing whatsoever. Provided, however, that such
termination shall not affect the rights or liabilities of the parties with
Representatives's sales of Products or Closeouts prior to the date of
termination, or with respect to any indebtedness then owing by either party to
the other. Subject to all terms of Section 2.01, Representative shall be paid by
the Company for all shipments made on all unfilled orders accepted by the
Company prior to termination. Upon termination of the Agreement, Representative
shall immediately return to the Company all lists of Customers, price books,
other pricing data, catalogs, booklets, pamphlets, and other sales and
advertising aids, and sample Products.
4.03 Termination of Previous Agreements. The Company and Representative
agree that any previous agreements between them regarding the subject matter
hereof which may still be in effect is hereby terminated.
V. MISCELLANEOUS
5.01 Representative's Status as Independent Contractor.
(a) Representative is appointed by the Company as, and shall be and
remain an independent contractor, and neither Representative nor any of
Representative's employees or agents shall be deemed to be an agent or employee
of the Company. As an independent contractor hereunder, Representative shall
have complete charge of any persons engaged by Representative in the
solicitation of orders for the purchase of Products, and any such persons shall
be agents or employees solely of Representative and not of the Company.
Representative shall be solely and wholly responsible for all losses, costs and
expenses incurred in his function as a Representative under this Agreement and
the Company shall have no obligation or liability for them.
(b) Representative understands that the Company will not withhold any
amounts from the commissions paid to Representative for federal or state income
taxes or for contributions under the federal or state income taxes or for
contributions under the federal social security program, any applicable
unemployment compensation statute, and any similar statute.
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(c) The parties agree that, even if it is determined by any
governmental agency or court or judicial authority of any kind that
Representative is covered by any of the statutes or programs mentioned in the
preceding subsection (b), Representative's status as an independent contractor
hereunder will not be adversely affected thereby and the Company may contest
such determination in its own name, in the name of the Representative, or both.
5.02 Indemnification. Representative agrees to indemnify and hold the
Company harmless against any claims for injuries or damages caused by
Representative or Representative's employees or agents, whether Representative,
or Representative's employees or agents are acting within the scope of
Representative's duties and authority hereunder or otherwise. In addition,
Representative shall indemnify and hold the Company harmless from any and all
liability arising from the relationship between Representative and any of
Representative's employees, agents and servants, whether under industrial
accident laws, Workers Compensation laws, or tax laws or tort liability laws or
any other law applicable to employers and employees. The provisions of this
paragraph 5.02 shall survive the termination of this Agreement.
5.03 Communications. Representative shall transmit promptly to the
Company any process or other notice or communication directed to the Company in
care of the address of Representative. The Company expressly reserves the right,
as against Representative, to communicate directly with actual or potential
Customers to obtain any information regarding the Products or the service
provided with respect thereto.
5.04 Equitable Relief. Representative acknowledges and agrees that any
confidential information acquired by Representative during the course of
performance of this Agreement is valuable and unique and that a breach by
Representative, or Representative's agents or employees, of the provisions of
Paragraphs 2.04 and 2.05 hereof may cause the Company irreparable injury and
damage which cannot reasonably and adequately be compensated by damages at law.
Representative therefore expressly agrees that the Company shall be entitled, in
addition to any other remedies legally available, to injunctive and/or other
equitable relief to prevent a breach of Paragraph 2.04 or 2.05 of this
Agreement.
5.05 Governing Law and Venue. Arizona law shall govern the construction
and enforcement of this Agreement and the parties agree that any claim or cause
of action pertaining to this Agreement shall lie only in courts of competent
jurisdiction located in Maricopa County, Arizona.
5.06 Construction. The language in all parts of this Agreement shall in
all cases be construed as a whole according to its fair meaning and not strictly
for nor against any party. The parties agree that each party has reviewed this
Agreement and that any rule of construction to the effect that ambiguities are
to be resolved against the drafting party shall not apply in the interpretation
of this Agreement or any amendment or any exhibits thereof.
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5.07 Nondelegability of Representative's Rights; Company Assignment
Rights. The obligations, rights and benefits of Representative hereunder are may
not be delegated, assigned or transferred in any manner whatsoever, nor are such
obligations, rights or benefits subject to involuntary alienation, assignment or
transfer. The Company may assign its rights, duties and obligations arising
hereunder in the Company's sole discretion.
5.08 Severability. In the event any term or provision of this Agreement
is declared by a court of competent jurisdiction to be invalid or unenforceable
for any reason, this Agreement shall remain in full force and effect, and either
(a) the invalid or unenforceable provision shall be modified to the minimum
extent necessary to make it valid and enforceable or (b) if such a modification
is not possible, this Agreement shall be interpreted as if such invalid or
unenforceable provision were not a part hereof.
5.09 Attorneys' Fees. Except as otherwise provided herein, in the event
any party hereto institutes an action or other proceeding to enforce any rights
arising out of this Agreement, the party prevailing in such action or other
proceeding shall be paid all reasonable costs and attorneys' fees by the
non-prevailing party, such fees to be set by the court and not by a jury and to
be included in any judgment entered in such proceeding.
5.10 Consideration. It is expressly understood and agreed that this
document sets forth the entire consideration for this Agreement, and that said
consideration for this Agreement is contractual and not a mere recital.
5.11 Gender and Number. All terms used in one number or gender shall be
construed to include any other number or gender as the context may require.
5.12 Counterparts. This Agreement may be executed in any number of
counterparts, all such counterparts shall be deemed to constitute one and the
same instrument, and each of said counterparts shall be deemed an original
hereof.
5.13 Section Headings. The section headings used in this Agreement are
inserted for convenience only and shall not affect the meaning or construction
of this Agreement.
5.14 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed duly given upon receipt if either personally
delivered, sent by certified mail, return receipt requested, sent by
telefacsimile with a copy by first-class U.S. mail, or sent by a
nationally-recognized overnight courier service, addressed to the parties as
follows:
If to Company: THE ANTIGUA GROUP, INC.
------------- ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ Attention:
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With a copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Representative: _______________________
-------------------- _______________________
_______________________
[address and fax #]
With a copy to: _______________________
_______________________
_______________________
[address and fax #]
or to such other address and/or telefacsimile number as any party may provide to
the other in accordance with this Section.
5.15 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof (i.e.,
Representative's sales activities in connection with the Company) and supersedes
all prior or contemporaneous offers, understandings or agreements in regard
thereto.
5.16 Modification of Agreement. No modification or addition to this
Agreement shall be valid unless in writing, specifically referring to this
Agreement and signed by all parties hereto.
5.17 Waiver. No waiver of any rights under this Agreement shall be
valid unless in writing and signed by the party to be charged with such waiver.
No waiver of any term or condition contained in this Agreement shall be deemed
or construed as a further or continuing waiver of such term or condition, unless
the waiver specifically provides otherwise.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
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THE ANTIGUA GROUP, INC.
________________________________________
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President
REPRESENTATIVE
________________________________________
By:
_____________________________________
[Printed Name]
Its:
____________________________________
[Title, if Representative is
not an individual.]
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