Exhibit 10.37
SALES REPRESENTATION & FULFILLMENT AGREEMENT
This Agreement, to be effective June 15, 2001, ("Effective Date") through
________, (Expiration Date") by and between, NUWAVE TECHNOLOGIES INC ("CLIENT"),
with offices at 0, XXXXXXX XXXXXX, XXXXXXXXX, XXX XXXXXX 00000, XXX and L.B.E
LIMITED T/A PARTNERS IN EUROPE (PIE) XXXXXXX XXXXXXXXXX XXXXXX XXXXXXX
XXXXXXXXXX, XX. XXXXX XXXXXXX ("REPRESENTATIVE").
Whereas CLIENT, is engaged in the business of manufacturing and selling certain
products, as more fully set forth below; and
Whereas, REPRESENTATIVE desires to represent CLIENT for the solicitation of
orders for CLIENT products from certain customers in the territory set forth
below;
Now therefore, the parties hereto agree as follows:
1. DEFINITIONS
1.1 "Products" are defined in Exhibit A
1.2 "Territory" is defined in Exhibit B
1.3 "Compensation and Commissions " is defined in Exhibit C
1.4 "Fulfillment Services" are defined in Exhibit D
1.5 "Technical Support" is defined in Exhibit E
1.6 "Net Sale" shall mean the actual shipment of a Product by CLIENT to a
Customer, and the issuing of an invoice by CLIENT, or an CLIENT authorized
invoicing agent it to such Customer for payment for such Product less any
credits issued for price adjustments or authorized product returns, or non
payment of invoices. The acceptance or booking of a purchase order shall
not constitute a Sale hereunder.
2. APPOINTMENT
CLIENT hereby appoints REPRESENTATIVE as CLIENT non-exclusives -s
representative for the products in the Territory, and REPRESENTATIVE
hereby accepts such appointment. As CLIENT representative, REPRESENTATIVE
shall have the limited right to market and distribute CLIENT products to
customers in the Territory.
3. DUTIES AND OBLIGATIONS OF REPRESENTATIVE
a. REPRESENTATIVE shall use its best efforts to introduce, promote the
sale of and obtain orders (subject to acceptance by CLIENT) for
Products at such prices and upon such terms and conditions, as
CLIENT shall communicate in writing to the REPRESENTATIVE from time
to time. REPRESENTATIVE shall devote as much time and attention as
shall be necessary to properly conduct such activities, shall take
such actions as CLIENT advises will be helpful to that end and shall
conduct its activities in accordance with such general instructions
as CLIENT may issue from time to time.
b. REPRESENTATIVE shall quote only such prices, terms and conditions,
and make only such representation as to quality, performance, and
the like, as from time to time may be authorized in writing by
CLIENT. REPRESENTATIVE will not make any representation, guarantee
or warranty with respect to the Products except as is authorized in
writing by CLIENT.
c. REPRESENTATIVE shall furnish to CLIENT appropriate reports relating
to ; sales made pursuant to this Agreement and any other information
relating to operations of REPRESENTATIVE and the market conditions
for the Product within the Territory. Such reports shall include,
but are not limited to, sales forecasts.
d. REPRESENTATIVE shall, at least quarterly, develop a marketing sales
plan acceptable to CLIENT (the "Plan"). The Plan will include key
account identification, product promotional plans, scheduled sales
activity, projected sales volumes, and projected support
requirements.
e. REPRESENTATIVE shall make no allowances or adjustments in accounts,
or authorize any customer to return any Products, unless given
specific advance "Return Material Authorization" (RMA), in
individual cases, in writing by CLIENT to do so.
f. REPRESENTATIVE shall avoid all circumstances and actions that would
place REPRESENTATIVE in a position of adverse interest of divided
loyalty with respect to the obligations undertaken under this
Agreement in promoting the sale and use of Products. REPRESENTATIVE
shall notify CLIENT thirty (30) days in advance of solicitation of
orders, or of acting as a factory representative or sales agent, for
a competing company. CLIENT shall have the right to cancel this
Agreement without incurring any Takeover Goodwill costs if
REPRESENTATIVE acts for a company which CLIENT considers to be a
competitor.
g. REPRESENTATIVE shall have no authority to collect funds or accept
payment of any orders accepted by CLIENT. REPRESENTATIVE shall
forward immediately to CLIENT any and all moneys or remittances in
any form which may be placed in its hands by Customers or accounts
in the Territory in payment against CLIENT invoices. REPRESENTATIVE
shall assist CLIENT, upon CLIENT request, in the collection of
overdue accounts by making available to CLIENT all data regarding
any Customer to whom REPRESENTATIVE may reasonably have access.
h. REPRESENTATIVE shall indemnify and hold CLIENT harmless from all
claims, demands, actions, liabilities, suits or damages resulting
from the activities of REPRESENTATIVE outside the scope of
REPRESENTATIVE's duties and obligations under this Agreement or
specifically prohibited by this Agreement.
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i. REPRESENTATIVE shall only sell CLIENT products to customers or
distributors who have been approved by CLIENT in writing.
4. EXPENSES
Specific, pre-approved expenses, where the pre-approval is in writing,
incurred on behalf of CLIENT in the Territory will be paid directly by
CLIENT or transferred to REPRESENTATIVE prior to payment due date, for
REPRESENTATIVE to pay on behalf of CLIENT Expenses typically include, but
are not limited to, the following:
- Freight, Import Duties & Transport Charges
- Trade Shows & Exhibitions
- Printing & Promotional Material
- Seminars
- On-going training
5. DUTIES AND OBLIGATIONS OF CLIENT
CLIENT shall supply REPRESENTATIVE, without cost, from time to time at
REPRESENTATIVE's place of business, with reasonable quantities of CLIENT
advertising and selling literature, samples, displays, drawings,
engineering or other Product data, as may made available by CLIENT to be
helpful in advancing sale of the Products. REPRESENTATIVE shall make
useful employment and effective use of such items, in accordance with its
own best judgment, and at its own expense, and not knowingly be wasteful
of such selling aids.
6. ORDER ACCEPTANCE AND SHIPMENT
All orders addressed to ACLIENT and solicited by REPRESENTATIVE shall
become binding on CLIENT only upon acceptance in writing by CLIENT to
REPRESENTATIVE. CLIENT may, at any time, reject an order submitted by
REPRESENTATIVE. REPRESENTATIVE shall not have the right, power; or
authority to accept any order on behalf of CLIENT. All Products for which
orders are accepted by CLIENT will be shipped and billed by CLIENT, or an
agent of CLIENT, directly to the customer. All payments shall be made
directly to CLIENT. REPRESENTATIVE shall have no authority to accept
collections from customers.
7. CLIENT CONFIDENTIAL INFORMATION
For so long as this Agreement is in effect and for three (3) years after
its expiration or termination, REPRESENTATIVE will consider as
confidential any information, including but not limited to trade secrets,
disclosed in tangible, electronic or oral form from CLIENT. All such
information is referred to below as "Confidential Information".
REPRESENTATIVE agrees to receive and maintain all Confidential Information
in strict confidence using at least reasonable care. Confidential
Information may be used by REPRESENTATIVE only in furtherance of the
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purposes of this Agreement and may not be delivered or disclosed, in whole
or in part to any third party. This does not apply to information which:
(a) is already known to REPRESENTATIVE or is publicly available at the
time of disclosure; (b) becomes publicly available after disclosure
through no act of REPRESENTATIVE; (c) is independently developed by
REPRESENTATIVE without breach of this Agreement; or (d) is disclosed by
CLIENT to a third party without an obligation of confidentiality.
Confidential Information, as defined m this Section, will include without
limitation all information disclosed by CLIENT to REPRESENTATIVE
concerning CLIENT business, customers, suppliers, products, business
and/or marketing plans, research, technology, software, pricing, product
development, revenue, costs of production, and personnel. All information
relating to this Agreement and/or REPRESENTATIVE's performance hereunder
which is created by or for REPRESENTATIVE will be the sole and exclusive
property of CLIENT and will be subject to the provisions of this Section.
8. RELATIONSHIP OF PARTIES
a. Nothing in this Agreement shall be construed to constitute REPRESENT
E as the employee of CLIENT, nor shall either party have any
authority to bind the other in any respect. Each shall remain an
independent contractor responsible only for its own action.
REPRESENTATIVE shall not, without CLIENT prior written approval,
alter, enlarge or limit orders, or make representation or guarantees
concerning CLIENT Products. REPRESENTATIVE shall not have the
authority to bind CLIENT by contract, nor in any way to incur
obligation of any kind on behalf of CLIENT and shall not represent
itself to any Customer or other person to believe REPRESENTATIVE has
any such authority.
b. REPRESENTATIVE will control all means and methods incident to the
performance and completion of the solicitation of orders and CLIENT
will not exercise direct control over the amount of time
REPRESENTATIVE shall devote to the solicitation of orders or the
methods used by REPRESENTATIVE in doing so.
9. TERM
This Agreement will become effective as of the date first written above
and will be for a term of _____ years. Should this agreement be terminated
prior to the end of its agreed term, compensation in accordance with
section 11 will be paid to REPRESENTATIVE.
10. TERMINATION
Termination notice by CLIENT should be in writing by giving 90 days notice
by registered mail to LBE Limited, T/A PARTNERS IN EUROPE, Xxxxxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xx. Xxxxx, Xxxxxxx. REPRESENTATIVE can
terminate this agreement by furnishing ninety (90) days notice to CLIENT
at an address nominated by CLIENT
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11. TAKEOVER GOODWILL
In the event that CLIENT terminates REPRESENTATIVE prior to the end of the
term of this Representation Agreement and initiates a direct sales program
in Europe and provided that REPRESENTATIVE has met the sales objectives
mutually agreed between CLIENT and REPRESENTATIVE, REPRESENTATIVE will be
compensated for 1 additional month's sales (following the termination of
the Agreement) for each 6 month period that this Representation Agreement
has bee in place on the following commission schedule. The commission will
be based on to ____% of the average monthly commission rate from the
proceeding ____ months.
12. ARBITRATION
Any dispute or claim arising out of or in connection with the agreement
will be finally settled by binding arbitration in New Jersey, USA under
the rules of arbitration of the International Chamber of Commerce by one
arbitrator appointed in accordance with the said rules. Judgment on the
award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Notwithstanding the foregoing, the parties may apply
to any court of competent jurisdiction for injunctive relief without
breach of this arbitration provision.
13. FORCE MAJEURE
Neither party will be liable to the other for any default (other than
failure to pay money) hereunder if such default is caused by an event
beyond such party's control, including without limitation acts or failure
to act of the other party, strikes or labor disputes, unavailability of
transportation, floods, fires, governmental requirements and acts of God
(a "Force Majeure Event"). In the event of threatened or non-performance
as a result of the above causes, the non-performing party will execute
commercially reasonable efforts, to avoid and cure such non-performance
and will provide prompt notification to the other party.
14. GENERAL
a. Neither party may assign its rights or obligations under this
Agreement without prior consent of the other, and any purported
assignment without such consent shall have no force or effect,
except that a party may assign this Agreement at incident to the
transfer of all or substantially all of its business. Subject to the
foregoing, this Agreement shall bind and inure to the benefit of the
respective parties hereto and their successors and assigns.
b. Neither party shall disclose the contents of this Agreement to any
third party, except as may be required by law.
c. No failure or delay by either party to enforce or take advantage of
any provision or right under this Agreement shall constitute a
subsequent waiver of that provision or right, nor shall it be deemed
to be a waiver of any of the other terms and conditions of this
Agreement.
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d. All notices or communications to be given under this Agreement shall
be in writing and shall be deemed delivered upon hand delivery, upon
acknowledged telex or facsimile communication, or three (3) days
after deposit in the United States mail, postage, prepaid, by
certified, registered for first class mail, addressed to the parties
at their addresses set forth above.
e. The terms and conditions of this Agreement may not be superseded,
modified, or amended except in writing which states that is such a
modification, and is signed by an authorized representative of each
party hereto.
f. This Agreement, including exhibits, constitutes the entire Agreement
between the parties as to the subject matter hereof, and supersedes
and replaces all prior contemporaneous agreements, written or oral,
and shall take precedence over any additional or conflicting terns
which may be contained in either party's purchase orders or order
acknowledgment forms.
g. This Agreement will be governed by and construed in accordance with
the laws of the United States (except for conflict of laws rules) as
applied to agreements entered into and to be performed entirely
within the United States.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
___ day and year first above written.
NUWAVE TECHNOLOGIES INC. L.B.E. LIMITED T/A PARTNERS
IN EUROPE (REPRESENTATIVE)
BY: /s/ Xxxxxxxx X. X'Xxxxx BY: /s/
--------------------------------- ----------------------------------
NAME: Xxxxxxxx X. X'Xxxxx Name: /s/
------------------------------- --------------------------------
Title: Chief Financial Officer Title: C.E.O.
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Date: June 4, 2001 Date: 4th June, 2001
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EXHIBIT A
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PRODUCTS:
Video Game Enhancer
EXHIBIT B
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TERRITORIES
Austria
Belgium
Denmark
France
Finland
Germany
Ireland
Italy
Luxembourg
Netherlands
Norway
Spain
Sweden
United Kingdom
EXHIBIT C
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COMPENSATION AND COMMISSION
1. Fees.
CLIENT will pay REPRESENTATIVE a fixed fee charge of US$_____ per month
for 6 months from commencement of contract date. This fee will be invoiced
monthly advance in US dollars. It includes payment for set-up services
associated with establishing CLIENT sales office in Europe. This fee will
be reduced by agreement between both parties at the end of the initial 6
month period.
2. Commissions
CLIENT will compensate REPRESENTATIVE with commissions as detailed
hereunder:
a. Retail Sales
During first 6 months of agreement:
o ___% commission on net sales between $______ and $_____ per
month
o ___% commission on net sales above $_____ per month
Subsequent to the first six months of agreement
o ___% commissions on net sales on first $_____ per month
o ___% on net sales above $_____ per month
b. OEM/Corporate Sales
To be agreed on a deal by deal basis
3. Trading Terms.
CLIENT will furnish to REPRESENTATIVE details of products and values, by
sales territory, billed and cash collected in each month to REPRESENTATIVE
within ten days of each month end billing period.
Commissions will be paid to REPRESENTATIVE by the 15th of the month
following receipt of the cash.
EXHIBIT D
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FULFILLMENT SERVICES
1) Warehousing and Order processing
Includes:
- Inventory management (up to a maximum of 12 pallet bays at any one
time
- Order Acceptance
- Order processing
- Shipping
- Reporting
2) RMA Processing
Includes:
- Number issuance and management
- Returned product handling & storage
- Return of product to CLIENT at agreed intervals
- Reporting
3) Debtors Book Management
Includes:
- Invoicing & Credits
- Cash collection and allocations
- Reporting
4) Banking & Taxation
Includes:
- Set-up
- Reconciliation's
- Tax Registration
- Bi-monthly VAT returns
- Reporting
5) Optional Warehouse Assembly (if required by NUWAVE)
Includes:
- Kitting of base parts to retail specs
- Labelling of retail boxes to meet localisation requirements
- This service will be charged at a fixed fee of $1.25 per unit
shipped including shrink-wrapping of product. This rate covers a
B.O.M limited to 12 items.
EXHIBIT E
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TECHNICAL SUPPORT
1. TAG
CLIENT will fully train all PIE's Technical support personnel to a level
of competency that allows the proper provision by PIE of multi-lingual
first tier telephone Technical support. CLIENT will provide PIE with
necessary trainers and training material within 2 weeks of commencement
date of this agreement.
2. DUTIES AND OBLIGATIONS OF CLIENT
CLIENT shall supply PIE, without cost, from time to time, at PIE's place
of business, with reasonable quantities of CLIENT products and technical
specifications/literature as may be required by PIE to facilitate PIE in
providing a professional Technical support function in Europe.
3. SERVICES
Multi-lingual telephone Technical support services covering all CLIENT
products listed on CLIENT distributor and partner price sheets.
Set-up and management of exclusive telephone number based in Ireland.
Reporting
Weekly reporting as follows
- Breakdown of QTY and category of calls by product
- Breakdown of QTY of calls by Country
4. HOURS OF OPERATION
Technical support coverage will be from 8:30a.m. to 5:30 p.m. Monday to
Friday excluding public holidays.
5. TOLL FREE NUMBERS
Set-up and running costs associated with any CLIENT approved toll-free
lines will be re-charged monthly to CLIENT. Set-up and estimated running
costs must be approved in writing by Client prior to installation.
