SALES REPRESENTATIVE AGREEMENT
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This Sales Representative Agreement (this "Agreement"), made this ___
day of _, 1999, by and between FutureTrak, Inc., a Florida corporation,
hereinafter referred to as "Company" whose principal place of business is 0000
Xxxx Xxxxxxx Xxxx. Xxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000, and Gulfstream Marine
Products, Inc., a Florida corporation, hereinafter referred to as
"Representative", whose principal place of business is 0000 000xx Xxxxxx Xxxxx,
Xxxxx, Xxxxxxx 00000.
WITNESSETH
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WHEREAS, the Company is engaged in the business of manufacturing,
distributing, and selling marine satellite systems and related items; and
WHEREAS, Representative is an independent business entity which has
established expertise in the marine industry and has business relationships with
a certain geographical area; and
WHEREAS, Company desires to appoint and Representative desires to
accept such appointment, as the exclusive sales agent of the Products (as
hereinafter defined) in a certain geographical territory, upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties agree as
follows:
Appointment.
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(A) Without limiting the generality of Section 1(b), and
subject to Section 6 hereof, Company shall retain the
right itself. To market and sell the Products as
specified in Exhibit A within the territory (as
defined below).
(B) Representative is hereby appointed the exclusive sales
agent of the Products within the following described
territory (hereinafter referred to as the
"Territory"):
North America,
(C) Products. For purpose of this Agreement, "Products"
shall mean those Products specified in Exhibit A
hereto, as may be amended from time to time by the
Company. Such amendment shall be effective upon
receipt by Representative of notice from Company
amending Exhibit A.
(D) Distribution Outside the Territory. Company may elect
to consider, at its sole option, sales and shipments
of the Products by Representative to be made outside
of the Territory, provided, however, that the making
of any such sales and/or shipments, and the terms
hereof, shall be negotiated in each individual case
prior to Company's acceptance of the order and shall
be subject to the prior approval of the Company.
Term.
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(A) This Agreement shall be effective when signed by the
last of the parties hereto required to sign, and shall
be in effect for an initial term of one (1) year,
unless earlier terminated as provided herein.
(B) This Agreement may be renewed for successive terms of
one (1) year each, if the parties hereto agree in
writing no later than ninety (90) days prior to the
expiration of the initial term or any successive terms
of this Agreement.
Duties and Obligations of Representative. Representative
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hereby agrees:
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(A) To use its best efforts to vigorously promote and sell
the Products within the Territory, including, but not
limited to, establishment of an adequate and trained
sales force and adequate marketing, advertising and
sales of the Products;
(B) To pay to Company all bills, invoices, fees, and
promptly meet all other obligations to Company;
(C) To protect the integrity of Company's trademarks,
trade names and other proprietary marks;
(D) To develop procedures and records to assure systematic
and complete coverage of customers or prospects within
the Territory; and
(E) The Representative shall keep the Company properly
advised and informed as to the general conditions
which pertain to or affect the sale of its products
and services. The Representative agrees to comply with
directives and policies established by the Company and
agrees to carry out such policies in dealing with
customers and trading in products in so far as such
policies and directives are not inconsistent with the
terms of this Agreement. The Representative shall use
its best efforts to obtain credit and financial
information on customers and prospects in the
territory granted to Representative and shall report
such information to the Company so as to keep the
Company completely informed of circumstances and
occurrences surrounding such customers. The
Representative shall use its best efforts to assist
the Company in the
processing of orders and other transactions between
the Company and customers upon which the
Representative earns commission credit.
(F) During the term of this Agreement and for a period of
not less than two (2) years following the termination
thereof, the Representative shall, at its sole cost
and expense, obtain and maintain, in full force and
effect, the following insurance: comprehensive general
liability insurance, including contractual liability
insurance, on an "occurrence' basis against claims for
bodily injury or death, including personal injury, and
property damage, with limits of not less than One
Hundred Thousand Dollars ($100,000) per person and not
less than Three Hundred Thousand Dollars ($300,000)
per occurrence.
(G) All policies of insurance that the Representative is
required to carry and maintain under this Section
shall provide that the Company shall be an additional
insured. In addition, all such policies shall contain
an agreement on the part of the insurers that, in the
event of cancellation of the policy in whole or in
party, or a reduction as to coverage or amount
thereof, whether initiated by the insurer or any
insured, the insurer shall provide at least thirty
(30) days' advance written notice to the Company prior
to such cancellation or reduction in coverage.
(H) Representative shall furnish the Company evidence of
the insurance required to be maintained and that it
has obtained pursuant to this Section. Such evidence
shall be in the form of insurance certificates, which
certificates shall contain the notice provision as
well as the additional insured or loss payee
requirements described above.
Duties and Obligations of the Company. Company hereby
--------------------------------------
agrees:
(A) To provide the Products; and
(B) At the sole cost and expense of Representative,
Company shall use reasonable efforts to assist
Representative in sales seminars and training sessions
and to provide sales literature to help promote sales
of the Products. All sales literature relating to the
Products must be approved by Company prior to its
distribution and all literature and related sales
materials (whether prepared by Representative or
Company) shall be returned to Company, at
Representative's sole cost and expense, upon
termination of this Agreement.
Minimum Sales Requirements.
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Representative agrees to sell a minimum of number
units of the Products per month commencing on the
effective date hereof as specified in Exhibit B
hereto. Representative's failure or refusal to comply
with the terms of
this paragraph shall constitute a material breach of
this Agreement and shall entitle Company to terminate
this Agreement.
Commission.
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(A) Representative shall be entitled to receive a
commission payment from the Company in an amount of
ten percent (10%) of the net sales price (excluding
applicable taxes) of Products sold by the Company to
customers within the territory granted to the
Representative. The amount of commission payable to
Representative shall be based upon transactions where
the Company has received purchase orders from
customers within the Representative Territory.
Commission shall be earned and payable to the
Representative based solely upon the sale of Products
and receipt of the entire purchase price by the
Company. Acceptance of all orders, pricing, terms and
associated arrangements are subject to the acceptance
of the Company in its sole discretion.
(C) Notwithstanding Section 6(a) above, Company shall have
the right set-off from the amount of commission
payable under this Section 6, ten percent (10%) of the
net sales price of any Products which were sold in the
Territory during the term of this Agreement and
subsequently returned to Company.
Commission Reporting
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The Company shall furnish to the Representative a
commission statement once each month. Commissions
payable to the Representative shall be paid on or
before the 20th day of the month following the month
the sale is transacted and the Representative has
earned commission.
Samples.
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The Company shall furnish ____ samples to the
Representative. Title and ownership of the samples
shall remain with the Company unless and until payment
for the samples has been made by the Representative.
The Representative shall exercise reasonable care and
control over the samples and shall not use them in any
way detrimental to interests of the Company. The
Representative shall account for all samples delivered
to Representative, returned to the Company and for all
samples disposed of in any manner by Representative.
Sale of Competitive Products.
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Representative hereby agrees that it shall not
engage, either within or outside of the Territory, in
the marketing, sale and/or distribution of
products which are competitive with the Products
during the term of this Agreement.
Advertising,Sales and Promotional Material.
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In connection with the sale, promotion or advertising
of the Products, Representative shall use and
distribute only such advertising or promotional
material supplied by the Company or approved in
writing by the Company. All such material not
supplied by or purchased from Company shall be
submitted to Company prior to its use or
dissemination. Company may, but is not required, from
time to time make available for sale to
Representative promotional material and products at
such prices as may be from time to time established
by Company, provided however, that Representative
shall be under no obligation to purchase such
promotional materials.
Sales: Collections.
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(A) Representative shall sell the Products only to
customers doing business or resident in
Representative's Territory.
Expenses.
---------
All expenses incurred by Representative in connection
with selling Company's products, including, but not
limited to travel expenses, salaries, advertising or
promotion in which Company has not agreed to
participate, and any expenses incurred in the
maintenance of show rooms or offices, shall be the
sole expense and obligation of Representative.
Independent Contractor.
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The relationship between the Company and
Representative shall be that of an independent
contractor and Representative shall not be considered
under the provisions of this Agreement or otherwise
as having the status of an employee or Representative
of Company. Furthermore, as an independent
contractor, Representative shall have no authority to
make any contract or commitments on behalf of Company
or otherwise bind Company without the express prior
written approval, authorization and acceptance by
Company.
Indemnification.
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The parties shall be indemnified and held harmless as
follows:
(A) Representative shall indemnify and hold harmless
Company from and against any and all claims, demands,
losses, costs, damages, suits, judgements, penalties,
expenses and liabilities of any kind or nature
whatsoever, including attorney's fees, arising
directly or indirectly out of or in connection with
Representative's sales of the Products or operation or
conduct of Representative's business.
(B) Company shall indemnify and hold harmless
Representative from and against any and all claims,
demands, losses, costs, damages, suits, judgements,
penalties, expenses, and liabilities of any kind or
nature whatsoever, including attorney's fees arising
directly or indirectly out of or in connection with
Company's manufacture, production, contract for
manufacture, promotion, sale or operation of the
Products.
Use of Proprietary Marks.
-------------------------
Representative acknowledges the validity of Company's
trade names, trade marks and other proprietary marks,
and that the same are the property of Representative.
Representative shall not in any way infringe upon,
harm, misuse or contest the rights of Company to such
marks and names. Representative shall not use any
other xxxx or name in connection with the Products
and shall not remove from the Products any such names
or marks placed thereon by Company. Representative's
right to use Company's names and marks shall
terminate upon termination of this Agreement for any
reason.
Confidentiality.
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Company may, from time to time, disclose or make
known to Representative certain proprietary
information and trade secrets relating to its
business, profitability, methods, techniques,
projected results, contracts, pricing, marketing,
financial information and results, customer list and
other information and know-how all relating to or
useful in Company's business. Representative agrees
not to divulge to third parties or use such
information without the prior written consent of
Company. Notwithstanding anything to the contrary
contained herein, Representative shall not be
prohibited from disclosing to third parties, or using
without the prior written consent of Company,
information that (A) was, on the date of this
Agreement, generally known to the public, (B) .is at
the time of disclosure known to Representative as
evidenced by written records in the possession of
Representative, (C) is subsequently disclosed to
Representative by a third party who is in lawful
possession of such
information and is not under an obligation of
confidence, (D) is disclosed by Company to third
parties generally without restriction on use and
disclosure or (E) Representative is required to
disclose by law or a final order of a court or other
governmental agency or authority of competent
jurisdiction.
Termination by Representative.
------------------------------
Representative shall have the right to terminate this
Agreement immediately upon a written notice to
Company upon the occurrence of any of the following:
(A) Company files a voluntary petition in bankruptcy or
for relief under any provision of the bankruptcy laws
for relief from debts; provided that Representative
may do business with any debtor in possession, trustee
or receiver under any such bankruptcy proceedings
without waiving Representative's rights, under this
Agreement, including its right to terminate this
Agreement; or
(B) The filing against Company of any involuntary
bankruptcy proceeding or the appointment of a receiver
over the business or property of the Company, where
Company has failed to secure the dismissal of such
involuntary petition or to obtain the removal of the
receiver within ninety (90) days.
Termination by Company.
-----------------------
Company shall have the right to terminate this
Agreement immediately upon a written notice to
Representative upon the occurrence of any of the
following:
(A) Representative engages in conduct or business
practices adversely affecting the sale or reputation
of Company's products;
(B) Representative files a voluntary petition in
bankruptcy or for relief under any provision of the
bankruptcy laws for relief from debts; provided that
Company may do business with any debtor in possession,
trustee or receiver under any such bankruptcy
proceedings without waiving Company's rights, under
this Agreement, including its right to terminate this
Agreement;
(C) The filing against Representative of any involuntary
bankruptcy proceeding or the appointment of a receiver
over the business or property of the Representative,
where Representative has failed to secure the
dismissal of such involuntary petition or to obtain
the removal of the receiver within thirty (30) days;
(D) The unauthorized use by Representative of Company's
proprietary marks.;
(E) The unauthorized sale of the Products outside of
Representative's Territory; or
(F) Representative's breach or failure to comply with any
of the terms and conditions of this Agreement.
Company's right to terminate upon the occurrence of
the foregoing events shall be at Company's option and
shall be in addition to any other rights or remedies
available to Company at law or in equity, including
damages and injunctive relief
Customer Information.
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The Company shall keep the Representative informed of
communications between customers upon which
Representative earns commission. Upon request the
Company shall provide the Representative with copies
of invoices pertaining to transactions upon which
Representative earns commissions. Any and all
information provided to Representative shall be
deemed to be confidential and shall remain the
property of the Company and returnable to the Company
upon request. Representative shall not disclose
confidential information to third parties nor cause
such information to become public information without
the express written agreement and permission of the
Company.
Rcpresentation and Warranty by Representative.
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Representative represents and warrants that it is a
corporation duly authorized, validly existing and in
good standing under the laws of the State of Florida,
is duly qualified to transact business in all the
states that comprise the Territory, and has all
necessary corporate powers to own its properties and
carry on its business as now owned and operated by
it.
Entire Agreement.
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This Agreement represents the entire understanding
and agreement between the parties with respect to the
subject matter hereof, and supersedes all other
negotiations, understandings and representations (if
any) made by and between such parties.
Amendments.
-----------
The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a
writing signed by the party as to whom enforcement of
any such amendment, supplement, waiver or
modification is sought and making specific reference
to this Agreement.
Assignments.
------------
No party shall assign his or its rights and/or
obligations hereunder without the prior written
consent of the other party (parties).
Further Assurances.
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The parties hereby agree from time to time to execute
and deliver such further and other transfers,
assignments and documents and do all matters and
things which may be convenient or necessary to more
effectively and completely carry out the intentions
of this Agreement.
Binding Effect.
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All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon,
inure to the benefit of, and be enforceable by the
parties and their respective legal representatives,
successors and permitted assigns.
Notices.
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All notices, requests, consents and other
communications required or permitted under this
Agreement shall be in writing (including telex and
telegraphic communication) and shall be (as elected
by the person giving such notice) delivered,
telecommunicated, or mailed (airmail if
international) by registered or certified mail
(postage prepaid), return receipt requested at the
addresses of the parties set forth above or to such
other address as any party may designate by notice
complying with the terms of this Section. Each such
notice shall be deemed delivered (a) on the date
delivered if by personal delivery, (b) on the datc
telecommunicated if by telegraph, (c) on the date of
transmission with confirmed answer back if by telex,
and (d) on the date upon which the return receipt is
signed or delivery is refused or the notice is
designated by the postal authorities as not
deliverable, as the ease may be, if mailed.
Headings.
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The headings contained in this Agreement are for
convenience of reference only, and shall not limit or
otherwise affect in any way the meaning or
interpretation of this Agreement.
Severability.
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If any part of this Agreement or any other Agreement
entered into pursuant hereto is contrary to,
prohibited by or deemed invalid under applicable law
or regulation, such provision shall be inapplicable
and deemed omitted to the extent so contrary,
prohibited or invalid, but the remainder hereof shall
not be invalidated thereby and shall be given full
force and effect so far as possible.
Survival.
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All covenants, agreements, representations and
warranties .made herein or otherwise made in writing
by any party pursuant hereto shall survive the
execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
Waivers.
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The failure or delay of any party at any time to
require performance by another party of any provision
of this Agreement, even if known, shall not affect
the right of such party to require performance of
that provision or to exercise any right, power or
remedy hereunder, and any waiver by any party of any
breach of any provision of this Agreement should 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 right, power or
remedy under this Agreement. No notice to or demand
on any party in any case shall, of itself, entitle
such party to any other or further notice or demand
in similar or other circumstances.
Specific Performance.
---------------------
Each of the parties acknowledges that the parties
will be irreparably damaged (and damages at law would
be an inadequate remedy) if this Agreement is not
specifically enforced. Therefore, in the event of a
breach or threatened breach by any party of any
provision of this Agreement, then the other parties
shall be entitled, in addition to all other rights or
remedies, to injunctions restraining such breach,
without being required to show any actual damage or
to post any bond or other security, and/or to a
decree for specific performance of the provisions of
this Agreement.
Governing Law and Venue.
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This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of
the State of Florida without regard to principles of
conflicts of laws. Venue of all proceedings in
connection herewith shall be in Broward County,
Florida.
Submission to Jurisdiction.
---------------------------
Each of the parties irrevocably and unconditionally
(a) agrees that any suit, action or other legal
proceeding arising out of or relating to this
Agreement may be brought in the courts of record of
the State of Florida in Broward County or the courts
of the United States, Southern District of Florida;
(b) consents to the jurisdiction of each such court
in any such suit, action or proceeding; (c) waives
any objection which it may have to the laying of
venue of any such suit, action or proceeding in any
of such court; and (d) agrees that service of any
court paper may be effected on such party by mail, as
provided in Section 22 hereof, or in such other
manner as may be provided under applicable laws or
court rules in said State.
Enforcement Costs.
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If any legal action or other proceeding, including
arbitration, is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach,
default or misrepresentation in conne tion with any
provisions of this Agreement, the successful or
prevailing party or parties shall be entitled to
recover reasonable attorney's fees, court costs and
all expenses even if not taxable as court costs,
incurred in that action or proceeding, in addition to
any other relief to which such party or parties may
be entitled.
Remedies Cumulative.
--------------------
No remedy herein conferred upon any party is intended
to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by
statute or otherwise. No single or partial exercise
by any party of any right, power or remedy hereunder
shall preclude any other or further exercise thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
COMPANY:
FUTURETRAK, INC.
By: /s/ Xxxxxx X. Xxxxxx C.O.O.
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Its: C.O.O. 2/8/99
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REPRESENTATIVE:
GUTLFSTREAM MARINE PRODUCTS, INC.
By: /s/ [ILLEGIBLE]
-------------------------------
Its: President
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2/5/99
5
EXHIBIT A
PRODUCTS
1. FutureTrak International, Inc. Space Scanner Unit, Model A I (the
"Space Scanner Unit").
2. Space Scanner Unit Installation Kits.
3 Space Scanner Unit Additional Power Supplies.
4 DTN
5 VIDEO ON DEMAND
6 VOICE OVER IP
7 ALL FUTURETRAK PRODUCTS SOLD TO MARINE INDUSTRY
EXHIBIT B
MINIMUM SALES REQUIREMENTS
Period Minimum Volume
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January, 1999 through June, 1999 Reasonable & Best Effort
July, 1999 through December, 1999 Reasonable & Best Effort