EXHIBIT 10.18
***: CERTAIN MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES EXCHANGE
COMMISSION.
AGREEMENT FOR SALES REPRESENTATION
GENERAL
AGREEMENT on this 30th day of January , 1998, between Thrige Electric A/S
("COMPANY"), a Danish Corporation with offices at Xxxxxxxxxxxxxx 0, 0000 Xxxxxx
C, and NDC Automation, Inc. ("REPRESENTATIVE"), a Delaware Corporation with
offices at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000, XXX.
1. DEFINITIONS
In addition to the terms defined elsewhere in this Agreement, the following
terms shall have the meanings assigned to them below:
"Products" shall mean the products described on Schedule A attached hereto.
"Territory" shall mean the United States and Canada.
2. APPOINTMENT
Subject to the provisions of this Agreement, the COMPANY appoints the
REPRESENTATIVE to be its exclusive representative in the Territory. The scope of
REPRESENTATIVE's authority and responsibilities are set forth in this Agreement.
REPRESENTATIVE acknowledges that it has no power or authority to accept any
order for the COMPANY, or to make warranties or guaranties as to the Products,
or to make any commitment for the COMPANY or to obligate the COMPANY in any
respects whatsoever. REPRESENTATIVE further acknowledges that it is not an agent
or employee of the COMPANY but is an independent contractor.
3. COMMISSIONS
REPRESENTATIVE will be paid commissions, in U.S. dollars, on the amount actually
received by the COMPANY from sales of Products to customers in the Territory,
after the following deductions:
(a) Freight and insurance
(b) Sales and other taxes, duties, impositions and charges
(c) Other: There will be no commission paid on tooling, jigs, fixtures,
cancellation charges and the like unless otherwise agreed.
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COMMISSION/EXPENSES. A fixed commission of *** for the REPRESENTATIVE will be
included in the COMPANY's pricing to the customers during the first twelve (12)
month period. During this period, the COMPANY guarantees REPRESENTATIVE seventy
five thousand dollars ($75,000). This sum will be paid in arrears in twelve (12)
monthly installments of six thousand two hundred fifty dollars ($6,250) and
deducted from any commission due to REPRESENTATIVE within the first sixteen (16)
months.
After the twelve (12) month period, the intention is to review and discuss the
results and the market situation and their possible effects on the rate of
commission.
If the price quoted by COMPANY has to be reduced to obtain the contract, the
Parties shall in good faith discuss such reduction and its effect on the
commission.
COMMISSION PAYMENT. Commissions will be due to the REPRESENTATIVE upon receipt
of payment by the COMPANY and payable to the REPRESENTATIVE once a month on the
last day of each month. No commission shall be due or paid unless and until
COMPANY receives payment on an order.
SALES OUTSIDE THE TERRITORY. Company shall pay to REPRESENTATIVE on all sales
made outside the Territory anywhere in the world and delivered to customers
within the Territory, fifty percent (50%) of the compensation which would be
payable if such sales were made within the Territory.
***
4. COMPENSATION AFTER EXPIRATION
As of the expiration date, COMPANY will no longer be bound to pay commissions to
the REPRESENTATIVE on sales in the Territory, except on orders obtained by the
REPRESENTATIVE prior to the expiration of the Agreement, which result in
shipments within four (4) months after the expiration date. No commissions will
be paid on any shipments made more than four (4) months after the date of
expiration, no matter what the reason for such delay.
5. CUSTOMER PROPOSALS
The parties agree on the main principle that the COMPANY shall execute the final
proposal to the customer, in close consultation with the REPRESENTATIVE. The
COMPANY will send a copy of the proposal to the REPRESENTATIVE before it is
received by the customer to allow the REPRESENTATIVE the opportunity to present
and/or follow up the proposal. The parties agree to jointly work out quoting
procedures that are as efficient as possible and that meet customers'
requirements.
6. TRADEMARKS, PATENTS, ETC.
(a) The REPRESENTATIVE acknowledges that this Agreement conveys no right to
any trademarks, copyrights, patents, proprietary information or other
intellectual property rights of the COMPANY, all of which are the sole
property of the COMPANY.
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(b) The REPRESENTATIVE shall advertise the Products solely under the
trademarks of the COMPANY PROVIDED THAT the advertisements of the
Products may include, in a position that is remote from the trademarks,
the name and/or address of the REPRESENTATIVE. All goodwill and any
rights that may arise as a result of REPRESENTATIVE's use of the
COMPANY's trademarks, trade names or logos shall inure solely to the
benefit of the COMPANY.
(c) The REPRESENTATIVE shall not at any time in any manner whether by
advertising or in any other manner do any act or thing which would or
might adversely affect the validity of any patents, copyrights or
trademarks belonging to the COMPANY, except by the COMPANY's direction.
(d) The REPRESENTATIVE shall upon becoming aware of any infringement or
imitation of any such patents, copyrights or trademarks in the
Territory, immediately notify the COMPANY thereof by facsimile confirmed
by letter.
(e) Neither the COMPANY nor the REPRESENTATIVE, its officers, agents,
servants, and employees shall not during the term of this Agreement or
any time thereafter, disclose in any manner to any person, firm or
corporation whether in competition with either party or not, any
knowledge or information pertaining to the conduct or details of either
party's business or its processes, formulas, machinery, devices,
products, and components used by either party in carrying on its own
business, or lists of either party's customers.
This obligation of confidentiality shall not extend to:
(i) Information which is or becomes part of the public domain through
no fault of either party;
(ii) Information which can be shown to have been legally disclosed to
either party by a third party which has not breached any
obligation as to non-disclosure;
(iii) Information which can be shown by either party to have been
acquired without restriction prior to disclosure of the same
information to it by the other party;
(iv) Information which can be shown by either party to have been
developed by it independently of any disclosure of confidential
information to it pursuant to this Agreement; or
(v) Information about market conditions or customers which either
party develops as a result of its duties hereunder.
7. OBLIGATIONS BY REPRESENTATIVE
The REPRESENTATIVE shall, at its cost and expense, for as long as this
Agreement shall continue:
(a) promote and seek to increase the sales of the Products in the Territory,
and exercise its best efforts in fulfilling its obligations under this
Agreement, and promote the sale of the Products in such a way that the
goodwill of the COMPANY will be supported.
(b) employ adequate and qualified personnel to allow the REPRESENTATIVE to
carry out his obligations under this Agreement;
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(c) provide facilities necessary to adequately support the marketing, sales,
storing, shipping and service of the Products, at terms mutually agreed
between the Parties;
(d) maintain an adequate stock of spare parts for the Products to meet the
reasonable requirements of customers, at terms mutually agreed between
the Parties;
(e) communicate to the COMPANY as soon as practicable any discovery,
improvement or invention (whether patentable or not) which may be
discovered by or may otherwise come into the possession of the
REPRESENTATIVE and which constitutes an improvement to or a modification
of the Products; the REPRESENTATIVE shall at the request of the COMPANY
grant to the COMPANY a non-exclusive license to use any such invention,
discovery or improvement in return for the payment of reasonable
royalties except as restricted by other contracts or REPRESENTATIVE'S
own reasonable commercial needs for confidentiality;
(f) use all reasonable endeavors in advertising, promotion and publicity of
the Products supplied by the COMPANY;
(g) provide upon reasonable request by the COMPANY a detailed written market
report including but not limited to such information as a review of the
forthcoming year, market conditions, competition, details of sales
achieved, e.g. spares, (including the name and location of customers),
and details of selling prices including breakdown of costs. In
particular, the REPRESENTATIVE shall, as part of the report, submit a
sales forecast for the following year, such forecast to be agreed with
the COMPANY. Other reports concerning sales may be requested should
these be relevant to the sale of the production.
8. UNDERTAKINGS BY REPRESENTATIVE TO REFRAIN The REPRESENTATIVE shall not during
the term of this Agreement:
(a) purport to act or hold itself out as entitled to act as agent of the
COMPANY for any purpose whatsoever,
(b) incur any liability on behalf of the COMPANY or in any very pledge or
purport to pledge the COMPANY's credit or accept any order to make any
contract binding upon the COMPANY.
(c) advertise the Products outside the Territory;
(d) without the prior consent in writing of the COMPANY, be concerned or
interested either directly or indirectly in the manufacture, production,
sale or advertisement of any goods in the Territory which are like or
similar to or which either alone or in conjunction with some other
product perform or are designed to perform the same or a similar
function to or which might otherwise compete or interfere with the sale
of any of the Products; this restriction shall apply for the term of
this Agreement and for a period of twelve (12) months after the date of
expiration; and
(e) assign or transfer the benefit of this Agreement or any part thereof to
any third party without the prior written consent of the COMPANY,
including (without limitation) authorize any party (other than employees
of the REPRESENTATIVE) to market or sell the Products.
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9. OBLIGATIONS OF THE COMPANY
The Company shall during the term of this Agreement:
(a) assist the REPRESENTATIVE in advertising Products, by supplying such
advice and assistance as the COMPANY deems appropriate, and by supplying
free of charge, such an amount of sales aids and literature as it
considers reasonably sufficient, with a view to promoting sales of the
Products within the Territory; and
(b) support the REPRESENTATIVE in its selling and technical efforts by
regular visits to the Territory of experienced personnel at times and
frequencies to be determined by the COMPANY; such visits shall take
place where practicable at least twice a year;
10. SECRECY
Except where necessary for the purpose of:
(a) prospecting for Customers for Products, and
(b) instructing existing Customers on the use and maintenance of Products,
The REPRESENTATIVE shall not at any time, whether during the continuance of this
Agreement or after its termination from whatever cause, disclose to any third
party any information, know-how, data, drawings or specifications relating to
the Products or any part thereof in any manner whatsoever, or relating to
pricing or market or customer information except with the prior consent in
writing of the COMPANY.
This obligation of secrecy shall not extend to:
(i) Information which is or becomes part of the public domain through
no fault of REPRESENTATIVE;
(ii) Information which can be shown to have been legally disclosed to
REPRESENTATIVE by a third party which has not breached any
obligation as to non-disclosure;
(iii) Information which can be shown by REPRESENTATIVE have been
acquired without restriction prior to disclosure of the same
information to it by COMPANY;
(iv) Information which can be shown by REPRESENTATIVE to have been
developed by it independently of any disclosure of confidential
information to it pursuant to this Agreement; or
(v) Information about market conditions or customers which
REPRESENTATIVE develops as a result of its duties hereunder.
11. TERM AND TERMINATION
(a) The initial term of this Agreement will be three (3) years from the date
set forth on the first page hereof. Each Party may terminate the
Agreement with three (3) months' written notice if the order intake is
less than *** for the first year and less than *** for each of the two
(2) following
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years. Thereafter, this Agreement may be renewed for one (1) year
periods, provided the Parties agree to do so in writing.
(b) This Agreement shall terminate if:
(i) either party commits any breach of any of the obligations or
agreements on its part contained in this Agreement or under any
other agreement between the parties, and, in the case of a
breach capable of being remedied, does not remedy the same
within thirty (30) days after the receipt of notice in writing
from the other party requiring it so to do; or
(ii) payment of any sum due to either party under this Agreement or
any other agreement between the parties remains unpaid for a
period of thirty (30) days after the same becomes due; or
(iii) either party becomes insolvent or goes into liquidation or has a
receiver or similar official appointed in respect of all or a
substantial part of its business; or
(iv) the REPRESENTATIVE suffers a significant change of ownership, or
merges or consolidates with one or more party, with the result
that control of the REPRESENTATIVE vests in a Competitor (or
vice versa).
For this purpose:
a "significant change in ownership" shall be deemed to have occurred
when more than fifty percent (50%) of the equity share holding (or
equivalent in terms of the ability to direct the affairs of the
REPRESENTATIVE) in the REPRESENTATIVE is held by any party who at the
date of this Agreement holds less than fifty percent (50%) of such
equity; and a "Competitor" shall be deemed to be any manufacturer or
supplier of products which is similar to or which are designed to
perform a similar function to the Products whether alone or in
conjunction with any other product or which might otherwise interfere
with the sale of any of the Products covered by this Agreement, then the
innocent party may forthwith by notice in writing terminate this
Agreement. Any such termination shall be without prejudice to the rights
of the parties accrued up to the date of termination.
(c) Upon the expiration or sooner termination of this Agreement, the
REPRESENTATIVE shall forthwith return to the COMPANY, or otherwise deal
as may be directed by the COMPANY with all Products, customer lists,
catalogues, specification and other documentation and data relating to
the Products belonging to the COMPANY and which may at the time of such
expiration or termination be in the hands of or under the control of the
REPRESENTATIVE.
(d) The COMPANY, by reason of the expiration or termination of this
Agreement in conformity with the terms hereof shall not be liable to the
REPRESENTATIVE for compensation, reimbursement, or damage either because
of the loss of goodwill, present or prospective profits on sales of
Products, expenditures, investments, commitments made in connection
therewith, or related to the performance hereunder or the business or
goodwill of the REPRESENTATIVE, except as stipulated under this
Agreement or agreed in writing between the Parties.
(e) ***
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(f) The provisions of sections 4, 5, 10 and 12 through 16 shall survive any
termination of this Agreement.
12. WAIVER
The failure of either party hereto to exercise or enforce any right conferred
upon that party under this Agreement shall not be deemed to be a waiver of any
such right or operate to bar the exercise or enforcement thereof at any time or
times thereafter.
13. NOTICES
Any notice required to be given by either party under the terms of this
Agreement shall be given by registered letter or facsimile addressed to the
party for whom it is intended at its last known place of business. Every notice
shall be deemed to have been received and given at the time when in the ordinary
course of transmission it should have been delivered to the address to which it
was sent or within seven (7) days after the date of dispatch of such notice,
whichever is the earlier.
14. ENTIRE AGREEMENT
This Agreement embodies the entire agreement between the parties in relation to
Products and all previous understandings, representations, statements,
undertakings and agreements, written or otherwise between the parties in
relation to Products are hereby canceled as from the date of signature hereof.
The parties agree that neither of them has placed any reliance whatsoever on any
previous understandings, representations, undertakings, statements and
agreements other than those expressly incorporated in this Agreement.
15. AMENDMENTS
All amendments hereto must be in writing and signed by both the COMPANY and the
REPRESENTATIVE.
16. PRODUCT LIABILITY INDEMNIFICATION AND INSURANCE
COMPANY agrees to maintain a comprehensive liability insurance coverage
including product liability coverage throughout the term of this Agreement,
which covers REPRESENTATIVE as a vendor according to Schedule B. REPRESENTATIVE
agrees to maintain a comprehensive liability insurance coverage including
product liability throughout the term of this Agreement.
17. CHOICE OF LAW AND FORUM
This Agreement shall be construed in accordance with and governed by the laws of
the State of New York, without giving effect to principles of conflicts of laws.
Both parties hereby irrevocably and unconditionally waives any claim to assert
that the law of any other jurisdiction should govern this Agreement.
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Any dispute or controversy arising out of or relating to this Agreement shall be
settled by means of arbitration under the laws and proceedings of the State of
New York, unless otherwise agreed between both parties in writing.
Both parties hereby consent to the jurisdiction of the court of the State of New
York and the United States District Court of New York with respect to any suit,
action or other proceeding arising under or in respect of this Agreement or with
respect to the transactions contemplated hereby, and expressly waives any and
all objections the parties may have to venue in any such courts. Neither party
shall bring any suit, action or other proceeding under or in respect of this
Agreement in any courts other than the above. The parties further agree that any
summon and complaint commencing an action or proceeding in any of such courts
shall be properly served and shall confer personal jurisdiction if served
personally or by certified mail to the other party at its address provided at
the beginning of this Agreement or as otherwise provided under the laws of the
State of New York.
18. ACCEPTANCE SIGNATURES
Executed the day and year set forth above.
THRIGE ELECTRIC A/S NDC AUTOMATION, INC.
By: /s/ Mogens From By: /s/ Xxxxx Xxxxxxxxx
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Title: President Title: President
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ATTACHMENTS
SCHEDULE A : List of Products
SCHEDULE B : COMPANY's liability insurance with endorsement for vendor
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