AGREEMENT is made and entered into as of the 27th day of May, 2005, by and
between HISS , a Florida corporation ("HISS"), and Barry Bennett a resident
the State of Virginia residing at 119 North Payne Street, Alexandria, Virginia
designs and/or manufactures security system software and products, including
Cyber Tracker, Radiation Detection equipment, and cellular phones.
represents that it is familiar with the market for HISS's products and wishes
act as a sales representative for HISS's Products (as defined below) in the
Territory (as defined below).
THEREFORE, in consideration of the mutual promises and mutual covenants
exchanged, the parties hereby agree as follows:
mean those standard HISS products, systems and accessories and related products
offered by HISS for sale in the Territory which are listed in Exhibit A
attached hereto, as the same may be amended or modified from time to time by
HISS in its sole discretion.
mean the geographical area, specified prospects/customers or areas described
Exhibit B attached hereto, as the same may be amended or modified from time
to time by duly authorized representatives of the parties hereto in
mean all amounts invoiced in respect to the sale of Products actually shipped
a customer, less actual discounts, credits, refunds and allowances made,
freight, transportation, C.O.D., insurance and similar charges, manufacturer's
warranty charges, and any applicable sales, use or other similar
mean orders from customers that have been received, acknowledged and accepted
HISS and scheduled for shipment to the customer.
mean Representative's compen-sation for performance of its duties hereunder
the rates set forth in Exhibit A attached hereto, as the same may be
amended or modified from time to time by HISS in its sole discretion by giving
at least thirty (30) days’ prior written notice to Representative before such
change becomes effective. The new commission rates shall apply to all orders
received or dated after the effective date of such notification.
mean those customers for or purchasers of HISS Products which are located within
the Territory and which are designated from time to time in writing by HISS
House Accounts. House Accounts designated by HISS at the time of execution
this Agreement are set forth in Exhibit B attached hereto. HISS may in its
sole discretion designate other customers as House Accounts by giving
Representative at least ten (10) days prior written notice of such designation
before such designation becomes effective.
mean those customers for or purchasers of HISS Products which are not defined
Section 1.6 above and shall be serviced by the Representative.
mean those persons, firms or organizations purchasing HISS Products for resale
to customers in the Territory (excluding House Accounts) in accordance with
distributorship agreements entered into from time to time with
mean all informa-tion made available by HISS to Representative, its agents
employees, in connection with this Agreement which HISS protects against
unrestricted disclosure to others and which: (i) if in written or other
tangible form, is clearly designated as "Confidential"; or (ii) if
disclosed orally, is designated as "Confidential" in a written memorandum
delivered by HISS promptly following such oral disclosure. By way of
illustration, but no limitation, Confidential Information may include
proprietary technical data and concepts, vendor and customer information,
financial information and marketing data.
2.1 Appointment. HISS
hereby appoints Representative as HISS's non-exclusive sales representative
solicit orders for Products in the Territory, and Representative hereby accepts
such appointment, subject to the terms and conditions of this Agreement.
Notwithstanding the foregoing, HISS reserves the right during the term of this
Agreement to sell Products directly to House Accounts without paying Commissions
agrees to use its diligent and best efforts to solicit orders and promote sales
of Products in the Territory and to devote such time and effort to such
activities as is reasonably necessary to provide coverage for existing and
potential accounts within the Territory on a regular basis, consistent with
shall solicit orders for Products at such prices, and on such other terms and
conditions, as may be established by HISS from time to time. All quotations
Products must be made on HISS's standard quotation forms and be based upon
HISS's published prices and standard terms and conditions as then in effect,
unless deviations there from have been approved in advance by HISS. No quotation
will be valid for a period of more than thirty (30) days unless otherwise
approved in advance by HISS. Representative will provide to HISS copies of
quotations and correspondence with customers and potential
Purchase Orders solicited by Representative are subject to written acceptance
an officer or other authorized employee of HISS, and no Purchase Order shall
binding upon HISS until so accepted. All orders will be accepted only in
accordance with HISS's Standard Terms and Conditions of Sale. HISS reserves
right to alter or amend its Standard Terms and Conditions of Sale at any time
and such revised Standard Terms and Conditions of Sale shall be used for all
sales after the effective date of such revisions. Representative agrees that
shall have no authority to accept any order, assume, create or modify any
agreement or obligation or authorize any allowance, adjustment or return of
Products on behalf of HISS and shall so advise all customers and potential
customers with whom it deals.
shall have the right to change its standard price list at any time and from
to time during the term of this Agreement, provided that HISS shall give
Representative thirty (30) days' advance notice of any such price change. No
price change shall be effective for Products covered by a Purchase Order
accepted by HISS prior to the effective date of such price change. The price
all Products shall include the cost of standard packaging in accordance with
HISS's standard commercial practices. All freight, insurance, shipping and
non-standard packaging expense shall be borne by and invoiced to the customer
unless otherwise specified in HISS’s quotation.
invoices in connection with Purchase Orders solicited by Representative shall
rendered by HISS, directly to the customer, with a copy thereof to be forwarded
to Representative, in accordance with HISS's established invoicing practices.
Responsibility for all collections shall rest with HISS; provided, however,
HISS does not warrant the collectibility of any invoice. Representative agrees,
upon HISS's request, to assist HISS in effecting the collection of receivables
from customers solicited by Representative.
Duties of Representative.
the term of this Agreement, Representative agrees as follows:
shall maintain at least one office in the Territory which shall be continually
open and adequately staffed during normal business hours. Representative shall
employ an adequate number of qualified sales personnel, at such compensation
on such other conditions as Representative may deem appropriate, in order to
enable Representative to discharge its duties hereunder;
request of HISS, Representative agrees to undertake, at Representative's
expense, those administrative functions HISS deems reasonably required for
proper management of the sales activity, including, but not limited
of sales personnel at Regional Sales Conferences
for the region in which the Territory is located and
National Sales Conferences.
of rolling three-month forecasts of bookings and billings
forecasts to HISS every month.
of annual sales forecasts.
of customer contact reports on a regular basis.
shall obtain, and regularly report to HISS, information concerning existing
potential markets for existing Products, as well as customer interest in
potential new or modified Products within HISS's field of
shall cooperate with and assist HISS in implementing such promotional and
merchandising campaigns as HISS may from time to time undertake;
shall regularly report to HISS regarding activities of HISS's competitors of
which Representative becomes aware during the course of Representative's
shall properly store and maintain all Products and other property of HISS which
may be supplied to Representative on consignment, for demonstration purposes
otherwise, and shall return the same to HISS in good condition (reasonable
and tear excepted) upon the termination of this Agreement or HISS's request
therefore. Representative shall be responsible for normal maintenance of all
demonstration units when they are located in the Territory. Representative
provide monthly inventory reports to HISS of any Products or other property
HISS, which is in Representative's possession, or in transit to or from
Representative, and shall be responsible for any loss or shortage.
Representative shall keep appropriate and adequate records of any Products
other property of HISS shipped to and from its premises under its control or
direction, and shall maintain suitable warehousing facilities where required.
HISS shall have the right, on request, to examine and/or audit all records
pertaining thereto and to conduct a physical inventory on reasonable
shall promptly notify HISS of any complaint or claim made or brought against
Representative or HISS with respect to any Product;
shall promptly notify HISS of all inquiries regarding Products received by
Representative from sources outside the Territory;
shall avoid any actual or potential conflict of interest with its duties to
hereunder. Representative shall not represent any other manufacturer or supplier
of equipment competitive with the Products without the prior written consent
shall attend, at Representa-tive's expense, at least one of HISS's periodic
training sessions per year.
the term of this Agreement, HISS agrees as follows:
shall provide Representative with current technical information regarding the
Products. HISS may add or delete Products which it offers for sale from time
time in its sole discretion; and
shall furnish to Representative, without charge, reasonable quantities of
promotional sales literature and brochures, catalogue sheets, price lists and
engineering data and such other information and sales aids as, in HISS's
opinion, are appropriate for use by Representative in soliciting the sale of
Products hereunder, which materials may be used by Representative solely to
support its sales activities on HISS's behalf.
and exclusive commission compensation for Representative's services hereunder,
HISS shall pay Commissions to Representative, at the rates set forth in Exhibit
A attached hereto, on (i) the Net Billings directly invoiced by HISS with
respect to sales of Products to Regular Account customers located in the
Territory, and (ii) the Net Billings invoiced by HISS's Industrial Distributors
with respect to sales of Products for shipment to Regular Account customers
Representative located in the Territory, but excluding in each case Net Billings
with respect to sales of Products to House Accounts.
payments with respect to sales of Products made directly through Representative
shall be made by the fifteenth (15th) day of the calendar month following the
month in which HISS receives payment from its customers.
Commission payment shall be accompanied by a statement setting forth in
reasonable detail the computation of the Commissions being paid, and any
deductions thereto for identifying invoices by number.
in its sole discretion, allocate Commissions to be shared between two or more
HISS's Representatives. Representative shall be notified in writing of HISS's
determination, which shall be final.
Agreement is terminated by either party, Commissions shall thereafter be
determined and payable in accordance with Section 5.
or dispute Representative may have, which is related to or arises out of the
payment of Commissions hereunder shall be submitted to HISS in writing within
thirty (30) days after Representative knows of, or has reason to know of, the
basis for the claim or dispute. Failure to give notice shall relieve HISS from
any and all liability for such claim or dispute. The provisions of this
subsection shall survive the termination of this Agreement.
agrees to pay Barry Bennett a sum of $5,000.00 each month beginning on June
2005 and at the beginning of each month thereafter for the life of this
agreement. Barry Bennett aggress to become a Part-time employee of HISS and
operate a Washington Office for the company. In addition to the monthly
compensation HISS will pay $800 each month during the term of this agreement
a portion of rent and overhead. All other expenses must be pre-approved by
Bennett will participation in the ESOP and be granted restricted stock options
at a agreed upon strike price for 20,000 shares per month.
and Limitations of Liability.
shall provide to customers solicited by Representative only such limited product
warranties as are contained in its Standard Terms and Conditions of Sale, as
modified from time to time. Representative shall make no representations or
warranties to customers or potential customers inconsistent with or in addition
to those contained in such terms and conditions.
Information and Trademarks.
agrees that HISS retains proprietary rights in and to all product
specifications, designs, engineering details, discoveries, inventions, patents,
trade secrets and other proprietary rights relating to the Products (the
"Proprietary Information"). The Products are offered for sale and are sold
HISS subject in every case to the condition that such sale does not convey
license, expressly or by implication, estoppel or otherwise, to manufacture,
duplicate or otherwise copy or reproduce any of the Products.
of Confidential Information.
agrees to protect the confidentiality of all Confidential Information (including
without limitation the Proprietary Information) with the same degree of care
Representative accords to Representative's own confidential and proprietary
information and to use such Confidential Information only for purposes related
to this Agreement; provided, however, that Representative shall not be obligated
to treat information as Confidential Information, if such
rightfully in Representative's posses-sion, or rightfully known to
Representative, prior to its receipt from HISS; or
becomes public knowledge without the fault of Representative; or
becomes rightfully available to Representative without confidential restriction
from a source having no duty of confidentiality to HISS.
obligations imposed by Section 4.2 shall continue during the term of this
Agreement and for a period of two (2) years thereafter. Upon termination of
Agreement, Representative will return to HISS, within thirty (30) days, all
Confidential Information in written or other tangible form, and all
reproductions, copies, extracts or summaries thereof, in its
hereby grants Representative the right to use HISS's trademarks solely in
connection with the solicitation of orders for Products hereunder and for such
other purposes as may be approved in advance by HISS. Representative
acknowledges that such trademarks are and shall remain the sole property of
HISS. Representative shall not do or suffer to be done any act or thing that
will in any way impair the rights of HISS in and to any HISS trademark.
Representative agrees not to use or register for use any name or mark
confusingly similar to any trademark of HISS. Upon termination of this Agreement
for any reason, Representative agrees to discontinue use of all HISS
terminated sooner as herein provided, the term of this Agreement shall be for
period of twelve (12) months from the date of this Agreement. Furthermore,
Agreement will be automatically renewed for additional twelve (12)-month terms,
unless HISS gives notice of termination of the Agreement to Representative
least thirty (30) days’ prior to the expiration of the initial or any renewal
term. Commissions on accounts booked by the representative will continue to
paid as long as the accounts are active and generating net billing
by HISS for Cause.
Agreement may be immediately terminated by HISS upon the breach or default
Representative of any of the material terms, obligations, covenants,
representations or warranties contained herein, including, without limitation,
Representative's misuse of Confidential Information or the engagement in
activities competitive with the sale of Products by HISS, by giving written
notice of termination and specifying such breach or default.
Agreement may be terminated by either of the parties without cause upon written
notice to the other party given at least ninety (90) days prior to the effective
date of termination stated in the notice. In such event, Representative shall
receive Commissions only on Bookings made directly through Representative prior
to the date of termination, which result in payments made for as long as the
bookings generate net billing revenue.
notices and other communications required or permitted hereunder shall be in
writing and shall be deemed effectively given upon personal delivery or on
day sent by facsimile transmission if a true and correct copy is sent the same
day by first class mail, postage prepaid, or by dispatch by an internationally
recognized express courier service, to the proper parties at the appropriate
headings of the several sections of this Agreement are inserted for the
convenience of reference only and are not intended to affect the meaning or
interpretation of this Agreement.
Agreement may be executed in counterparts, and delivery of a signed counterpart
by facsimile shall constitute valid execution and delivery of this
this Agreement, nor any rights or obligations hereunder may be assigned,
delegated or transferred in any manner by Representative without the prior
written consent of HISS. This Agreement shall bind and inure to the benefit
any successors or assigns of HISS and to any permitted successors or assigns
Agreement, including Exhibits A and B hereto, constitutes the entire agreement
between the parties pertaining to the subject matter contained herein and
supersedes all prior and contemporaneous negotiations, representations,
agreements and understandings of the parties. Except for amendments or
modifications permitted to be made by HISS in its sole discretion, no
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by the party sought to be bound.
Agreement shall be governed by and construed and interpreted in accordance
the laws of the State of Florida without regard to any principles governing
conflicts of laws. Any action or proceeding brought under or arising out of
Agreement shall be litigated or brought in an appropriate state or federal
in the State of Florida. The trade terms under this Agreement shall be governed
by and interpreted in accordance with the provisions of the Uniform Commercial
Code, as adopted in the State of Florida, and shall not be subject to or
governed by the United Nations Convention on Contracts for the International
Sale of Goods.
any provision of this Agreement be determined to be invalid, it should be
severed from this Agreement and the remaining provisions of this Agreement
remain in full force and effect.
failure of either party to enforce at any time any provision or provisions
this Agreement shall in no way be considered to be a waiver of such provision
provisions, nor shall such failure affect the validity of this Agreement in
way. The failure of either party to exercise any such provision or provisions
shall not be construed as a waiver of any continuing or succeeding breach of
such provision, a waiver of the provision itself, or a waiver of any other
under this Agreement.
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
date first set forth above.
Fredrick W. Wicks
products covered by this Agreement are listed below:
Standard Products and Options (Hardware and Software) listed on the effective
SCHEDULE FOR DIRECT SALES
the net billing invoice.
May 27, 2005
following Territory is hereby assigned to Representative for the sale of HISS
Products as described in this Agreement:
States Federal Government, State Governments, Local Governments, and Foreign
from commissions payable for sales in the Territory are sales to the following