EXHIBIT 10.25
NORTH AMERICA SALES REPRESENTATIVE AGREEMENT
THIS AGREEMENT is entered into in Hillsboro, Oregon, as of
______________("Effective Date"), between Lattice Semiconductor Corporation,
a Delaware corporation with principal offices at 0000 X.X. Xxxxx Xxxxx,
Xxxxxxxxx, Xxxxxx, 00000 ("Lattice"), and _______, a corporation with
principal offices at _________ ("Representative").
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES AGREE
AS FOLLOWS:
1. DEFINITIONS
1.1 "Product(s)" means Lattice's hardware and software products
identified in Lattice's current price list. Products may be changed,
reclassified, abandoned or added by Lattice, in its sole discretion. Lattice
shall be under no obligation to continue the production or sale of any
Product.
1.2 "Territory" shall initially mean those geographical areas set forth
in Exhibit A attached hereto. Lattice retains the sole authority and right
to redefine the Territory at any time and for any or no reason, and to
resolve as it sees fit any and all conflicts between its sales
representatives in the event of conflicting, overlapping, or changing
Territories and Territory boundaries.
2. APPOINTMENT AND AUTHORITY OF REPRESENTATIVE
2.1 APPOINTMENT. Subject to the terms and conditions of this
Agreement, Lattice hereby appoints Representative as Lattice's exclusive
sales representative for the Products in the Territory, and Representative
hereby accepts such appointment. Representative's sole authority is to
solicit orders for the Products in the Territory in accordance with the terms
of this Agreement. Representative shall not have the authority to make any
commitments whatsoever on behalf of Lattice.
2.2 RESERVED RIGHTS. Notwithstanding the provisions of Section 2.1
above, Lattice reserves the right to (a) solicit orders directly from and
sell Products directly to any customer within the Territory, and (b)
authorize third party distributors to solicit orders and sell Products in the
Territory.
2.3 TERRITORIAL LIMITATION. Representative shall not advertise, sell
or solicit orders for the Products from outside the Territory without the
prior written consent of Lattice.
2.4 CONFLICT OF INTEREST. The parties acknowledge that any efforts by
Representative to market or sell competing products in the Territory would
constitute a conflict of interest with respect to Representative's
obligations to market the Products. Representative warrants that it does not
currently represent or sell any Products which compete with Lattice's
Products. If Representative
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intends to market, promote or distribute products that compete with the
Products, Representative shall notify Lattice of its intent at least sixty
(60) days prior to commencing such activity and Lattice shall have the right
at such time and at any time thereafter to immediately terminate this
Agreement upon written notice to Representative without obligation to pay
post-termination commissions to Representative as provided for in Section 9
below. Failure to so notify Lattice will be deemed to be a material breach of
this Agreement. A product will be deemed to compete with the Products if, in
Lattice's sole discretion, such product provides substantial overlap of any
of the functionality or features of the Products. If Lattice introduces a
new Product which competes with a product marketed or distributed by
Representative, Representative will have sixty (60) days to cease
representing such competing product in order to remain in compliance with
this provision.
2.5 INDEPENDENT CONTRACTORS. The relationship of Lattice and
Representative established by this Agreement is that of independent
contractors, and nothing in this Agreement may be construed to (a) give
either party the power to direct and control the day-to-day activities of the
other, (b) constitute the parties as partners, joint venturers, co-owners or
otherwise as participants in a joint undertaking, or (c) allow Representative
to create or assume any obligation on behalf of Lattice for any propose
whatsoever. All financial and other obligations associated with
Representative's business are the sole responsibility of Representative.
Representative shall be solely responsible for, and shall indemnify and hold
Lattice free and harmless from any and all claims, damages or lawsuits
(including reasonable attorneys' fees) arising out of the willful or
negligent acts or omissions of Representative, its employees or its agents.
3. COMPENSATION
3.1 SOLE COMPENSATION. Representative's sole compensation under the
terms of this Agreement shall be commissions computed in accordance with
commission schedules set by Lattice. Commission schedules are typically
revised annually, but may be revised at any time, in Lattice's sole
discretion. For convenience of reference only, the initial schedule is set
forth in Exhibit B.
3.2 BASIS OF COMMISSION. The commission shall apply to all Product
sales shipped to end users in the Territory by Lattice's authorized
distributors or Lattice. Commissions shall be computed on the net amount
received by Lattice from the customer for Products only, and no commission
shall be paid with respect to charges for handling or freight, sales taxes,
COD charges, start-up charges, Product manual charges, qualification or test
data charges, and the like. In the case of sales by authorized distributors,
the basis of the commission will be the cost of the Product paid by the
authorized distributor, net of all discounts and adjustments. In the event
that Lattice, in its sole discretion determines to use the gross amount of
distributor resales to end customers (or any other measure which exceeds the
net distributor cost) as the basis for computing commissions, Lattice shall
have the right at any time on written notice effective immediately to revert
to the net distributor cost basis of commission as provided herein. In
addition, if Lattice does choose to use distributor resale cost as the basis
for commission, Lattice shall have the right to compute resale cost on any
basis it deems reasonable, including Lattice's estimate of average
distributor margins, and to change such method at any time. With respect to
software Products, "sales," "cost," and similar terms will be construed as
"licenses," "sublicenses," "license fees" and other terms used with respect
to
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intellectual property transactions as appropriate in context. For Products
which are held on consignment in end-user warehouses, a sale will be
recognized only when such Products are drawn out of consignment inventory by
the end user. The parties may agree, in writing from time to time, on
adjustments to the regular commission schedule for specific customers,
Products, or circumstances.
3.3 TIME OF PAYMENT. For shipments made directly by Lattice to a
customer, commissions shall be due and payable thirty (30) days after the end
of the month in which Lattice invoices the customer for the Products sold in
the Territory. Commissions on distributor resales to customers shall be due
and payable thirty (30) days after the end of the month in which Lattice
receives the distributor's resale information. Commission payments shall be
subject to all applicable governmental regulations and rulings, including the
withholding of any taxes required by law.
3.4 SPLIT COMMISSIONS. If more than one sales representative is
involved in the solicitation of a particular order, Lattice, in its sole
discretion, may split the total commission for the order between or among the
sales representatives involved. In no event will the total commission for an
order exceed the total commission calculated without splitting. Lattice will
not make split commission adjustments on any sales more than ninety (90) days
old, with such ninety (90) day period measured by the time from the shipment
of the Product by Lattice to the customer (and the date of receipt of the
authorized distributor's resale report for distributor's sales) to the date
of Lattice's approval of the commission split.
3.5 COMMISSION ADJUSTMENTS. Lattice shall have the absolute right to
set such discounts, to make such allowances and adjustments, to accept such
returns from its customers, and to write off as bad debts such overdue
customer accounts as it deems advisable. In each such case, Lattice shall
have the right to retroactively reduce commissions paid on such revised,
adjusted, or written off amounts against future commissions payable to
Representative. Commissions with respect to sales to customers who fail to
pay within sixty (60) days of the invoice date may in Lattice's sole
discretion be deducted from current commissions until such customer payments
are collected.
4. SALE OF PRODUCTS
4.1 SOLICITATION OF ORDERS. Representative shall use its best
efforts to solicit customer order for the Products. All inquiries from
potential customers will be followed up promptly and all prospective orders
obtained will be promptly forwarded to Lattice for Lattice's response. All
orders from end users must show Lattice, rather than Representative, as the
manufacturer/seller and shall correctly indicate part numbers,
specifications, quantities, shipping destination and method, desired shipping
date, and other significant customer data. Lattice is not required to pay
commissions on orders which show representative as the manufacturer or
seller. Representative shall work closely with customers to ensure proper
preparation of orders.
4.2 ACCEPTANCE. All prospective orders obtained by Representative are
conditioned on acceptance by Lattice at its principal office currently
located at the address listed for Lattice at the beginning of this Agreement.
Representative shall have no authority to make any acceptance or
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delivery commitments to customers. Lattice specifically reserves the right
to reject any order or any part thereof for any reason.
4.3 CREDIT APPROVAL. Lattice shall have the sole right of credit
approval or credit refusal for customers in all cases.
4.4 INVOICES. Lattice shall render all invoices directly to the
customers and shall send summary reports of commissionable invoices to the
Representative. Customer payments will be made directly to Lattice.
4.5 COLLECTION. It is understood by Representative that responsibility
for collection of invoices rests with Lattice, and Representative will not
take any action toward collection of invoices absent express written
authorization from Lattice.
4.6 INQUIRIES FROM OUTSIDE THE TERRITORY. Representative shall
promptly submit to Lattice, for Lattice's attention and handling, the
originals of all inquires received by Representative from customers outside
the Territory.
4.7 POLICIES. Representative agrees to abide by Lattice's sales
policies and procedures as may be modified by Lattice from time to time,
including without limitation those provisions which may limit, delay, or
restrict payment of commissions in the event of violations of such policies.
5. PRODUCT WARRANTY AND PRODUCT AVAILABILITY
5.1 PRODUCT WARRANTY. Any warranty for the Products shall run directly
from Lattice to the customer, and pursuant to the warranty the customer shall
return any allegedly defective Products to Lattice in compliance with
Lattice's return procedures. Representative shall have no authority to
accept any returned Products.
LATTICE MAKES AND REPRESENTATIVE RECEIVES NO WARRANTIES OR CONDITIONS OF
ANY KIND ON THE PRODUCTS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY
OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION WITH REPRESENTATIVE, AND
LATTICE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY,
NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
5.2 PRODUCT AVAILABILITY. Under no circumstances shall Lattice be
responsible to Representative in any way for Lattice's failure to fill
accepted orders, or for its delay in filling accepted orders, regardless of
the reason therefor.
6. DEMONSTRATION PRODUCTS
Lattice may loan certain Products and examples of Product applications
to Representative as
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sample or demonstration Products ("Demonstrators"). All such Demonstrators
will remain the property of Lattice. All loans of software products shall be
further subject to the terms and conditions of Lattice's standard software
license agreement. Representative shall have full responsibility for keeping
Demonstrators in proper operating condition during the entire time that the
Demonstrators are in its possession and Representative shall be responsible
for any damages to such Demonstrators except for damages or deterioration
which result from normal wear and tear. Within fifteen (15) calendar days of
a written request from Lattice, Representative shall return each Demonstrator
to Lattice in good condition.
7. ADDITIONAL RESPONSIBILITIES OF REPRESENTATIVE
Representative shall have the following responsibilities:
(a) provide sales coverage of OEM accounts and distributor resale
within the Territory in a competent, professional manner consistent with good
business practice;
(b) achieve and maintain adequate personnel staffing levels and other
resources, and adequate levels of technical competence with respect to the
Products, all as determined by Lattice;
(c) provide business forecasts, reviews of business activity,
reviews of sales processes in the Territory with Lattice and its authorized
distributors, and all other information reasonably requested by Lattice, in
writing or approved electronic form, in the format required by Lattice; all
on a timely basis, and including all information required pursuant to
Lattice's standard representative policies and procedures, as they may be
modified by Lattice from time to time;
(d) cooperate with and assist Lattice in promotional and
merchandising campaigns;
(e) maintain an office or answering service, which shall be open
during normal business hours;
(f) pay all expenses of the operation of Representative's business
including, but not limited to, salespersons' expenses, travel, and account
visits; and
(g) attend all Lattice training and sales meetings as required.
8. ADDITIONAL RESPONSIBILITIES OF LATTICE
8.1 ASSISTANCE IN PROMOTION. Lattice shall, at its own expense, provide
Representative with commercially reasonable sales and technical assistance
concerning the Products as well as reasonable quantities of brochures,
instructional materials, advertising literature and other Product data.
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8.2 TRAINING. Lattice shall provide Representative with reasonable
training regarding Lattice's Products, policies and services as reasonably
required for Representative to understand and effectively market the
Products.
9. TERM AND TERMINATION
9.1 TERM. This Agreement will commence upon the Effective Date and
continue for a period of one (1) year unless terminated earlier as provided
herein. This Agreement will renew automatically on each anniversary of the
Effective Date for an additional one (1) year term unless written notice of
non-renewal is provided by either party not less than thirty (30) days prior
to the renewal date.
9.2 TERMINATION FOR CAUSE. This Agreement may be terminated
immediately by either party upon notice, if the other party (a) is in breach
of any material term or condition of this Agreement and does not cure such
breach within thirty (30) days after being given written notice thereof, (b)
becomes the subject of any voluntary or involuntary proceeding under the U.S.
Bankruptcy Code or state insolvency proceeding and such proceeding is not
terminated within sixty (60) days of its commencement, or (c) ceases to be
actively engaged in business. Notwithstanding the foregoing, if Lattice
becomes aware of a conflict of interest, or an impending conflict of
interest, pursuant to paragraph 2.4, Lattice may terminate this Agreement
immediately upon notice to Representative. Lattice may, in its sole
discretion, delay such termination until any other time, but expressly
reserves the right to revoke such delay in termination at any time and for
any or no reason.
9.3 TERMINATION FOR CONVENIENCE. This Agreement may be terminated at
any time by either party with or without cause upon thirty (30) days written
notice to the other party prior to the date of termination.
9.4 TERMINATION OF COMMISSIONS.
(a) In the event that the Representative terminates this Agreement
for convenience, Lattice will pay commissions to the Representative for
Product shipments to OEM customers through the date of termination, and for
distributor Product resales which occur through the date of termination and
are reported to Lattice, in the report for the distributor's fiscal month in
which the date of termination occurs..
(b) In the event that Lattice terminates this Agreement for cause
as provided in Section 9.2, Lattice will pay commissions to the
Representative for Product shipments to OEM customers through the date of
termination, and for distributor Product resales which occur and are reported
to Lattice, through the date of termination.
(c) In the event that Lattice terminates this Agreement as
provided in Section 9.2 due to a conflict of interest by the Representative
pursuant to Section 2.4, all Lattice obligations to pay commissions to the
Representative will immediately terminate.
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(d) In the event that Lattice terminates this Agreement for
convenience, or the Representative terminates this Agreement due to Lattice's
breach or insolvency, Lattice will pay commissions to the Representative for
OEM customer Product orders booked before the termination date which are
shipped through the date of termination. If the Representative has been a
sales representative for Lattice for at least two (2) years as of the date of
termination, then in the event of such termination Lattice will pay
commissions for OEM customer Product orders booked before the termination
date which are shipped within thirty (30) days after the date of termination.
The thirty (30) days after termination shipment period will be extended an
additional thirty (30) days if the Representative has been a sales
representative for Lattice for at least three (3) years as of the date of
termination, but in no event will be extended beyond a maximum of sixty (60)
days after the date of termination. Lattice will also pay commissions on
distributor Product resales which occur through the date of termination and
are reported to Lattice in the report for the distributor's fiscal month in
which the date of termination occurs.
9.5 RETURN OF MATERIALS. All confidential information, customer files,
trademarks, trade names, patents, copyrights, designs, drawings, formulas or
other data, photographs, literature, and sales aids of every kind shall
remain the property of Lattice, and Representative shall promptly return or
destroy, as Lattice may direct, all such materials upon termination of this
Agreement.
9.6 LIMITATION OF LIABILITY. In the event of termination by either
party in accordance with any of the provisions of this Agreement, neither
party shall be liable to the other, because of such termination, for
compensation, reimbursement of expenses, or damages on account of loss of
prospective profits or anticipated sales or on account of any other
expenditures, investments, leases or commitments made in connection with the
business or goodwill of Lattice or Representative or made in connection with
this Agreement or the anticipation of extended performance hereunder.
Lattice's sole liability under the terms of this Agreement shall be for any
unpaid commissions under Sections 3 and 9.4 above.
9.7 SURVIVAL OF CERTAIN TERMS. The provisions of Sections 1, 2.5, 3,
4.5, 5, 6, 9, 10, 11, 12 and 13 shall survive the termination of this
Agreement for any reason. All other rights and obligations of the parties
shall cease upon termination of this Agreement.
10. LIMITATION ON LIABILITY
IN NO EVENT SHALL LATTICE HAVE ANY LIABILITY FOR ANY LOST PROFITS OR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY
CAUSE OF ACTION INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM THE USE
OF THE PRODUCTS, OR THE FAILURE OF THE PRODUCTS TO PERFORM, OR FOR ANY OTHER
REASON. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT LATTICE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSS AND NOTWITHSTANDING THE FAILURE OF
THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT
THIS SECTION 10
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REPRESENTS A REASONABLE ALLOCATION OF RISK AND FORMS THE BASIS FOR THE
LEVEL OF COMMISSIONS PAYABLE TO REPRESENTATIVE HEREUNDER.
11. CONFIDENTIALITY
Representative acknowledges that by reason of its relationship to
Lattice hereunder it will have access to certain information and materials
concerning Lattice's business, plans, customers, technology, and products
that are confidential and of substantial value to Lattice, which value would
be impaired if such information were disclosed to third parties.
Representative agrees that it will not use in any way for its own account or
the account of any third party, nor disclose to any third party, any such
confidential information revealed to it by Lattice. Representative shall take
every reasonable precaution to protect the confidentiality of such
information. Upon request by Representative, Lattice shall advise whether or
not it considers any particular information or materials to be confidential.
Representative shall not publish any technical description of the Products
beyond any description which may be published by Lattice. In the event of
termination of this Agreement, Representative will no longer use, and will
not disclose to any third party, any confidential information of Lattice, and
Representative will not manufacture or have manufactured or sell or
distribute or represent any products utilizing any of Lattice's confidential
information.
12. TRADEMARKS AND TRADE NAMES
12.1 USE. During the term of this Agreement, Representative shall have
the right to indicate to the public that it is an authorized representative
of Lattice's Products and to advertise within the Territory such Products
under the trademarks, marks and trade names that Lattice may adopt from time
to time ("Lattice's Trademarks"). Nothing herein grants Representative any
right, title or interest in or to Lattice's Trademarks. At no time during or
after the term of this Agreement shall Representative challenge or assist
others to challenge the validity or ownership of Lattice's Trademarks or the
registration thereof, or attempt to register any trademarks, marks or trade
names confusingly similar to those of Lattice.
12.2 APPROVAL OF REPRESENTATIONS. All representations of Lattice's
Trademarks that Representative intends to use must first be submitted to
Lattice for approval (which shall not be unreasonably withheld) of design,
color, and other details or shall be exact copies of those used by Lattice.
If any of Lattice's Trademarks are to be used in conjunction with another
trademark on or in relation to the Products, Lattice's Trademarks shall be
equally legible, prominent and of equal or greater size than the other but
nevertheless separated from the other so that each appears to be a xxxx in
its own right, distinct from the other xxxx.
13. MISCELLANEOUS
This Agreement constitutes the entire agreement between the parties
relating to the subject matter hereof and no waiver or modification of this
Agreement will be valid unless in writing signed
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by each party. The waiver of a breach of any term hereof will in no way be
construed as a waiver of any other term or breach hereof. If any provision
of this Agreement is held by a court of competent jurisdiction to be contrary
to law or otherwise unenforceable or of no effect, the remaining provisions
of this Agreement shall remain in full force and effect. Lattice shall have
no liability for its failure to perform its obligations hereunder when due to
circumstances beyond Lattice's reasonable control. This Agreement shall
inure to the benefit of and be binding upon each party's successors and
assigns. This Agreement is governed by the laws of the State of Oregon
without reference to conflict of laws principles. All disputes arising out
of this Agreement shall be subject to the exclusive jurisdiction of the state
and Federal courts located in Multnomah County, Oregon, and the parties agree
and submit to the personal and exclusive jurisdiction and venue of such
courts.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
LATTICE SEMICONDUCTOR CORPORATION
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By: By:
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Print Name: Print Name:
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Title: Title:
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Date: Date:
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EXHIBIT A
TERRITORY
Territory includes:
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EXHIBIT B
COMMISSION SCHEDULE
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