Sales Representative Agreement

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    THIS AGREEMENT is made and entered into this ____ day of _______, 20__ (“Effective Date”) between  OEM Printed Circuit Board Replacements, having its principal office at 1600 Aspen Commons Suite 132 Middleton Wisconsin 53562  (hereinafter referred to as the “Company”), and ______________________________________having its principal office at __________________________________________________________________________ (hereinafter referred to as the “Representative”).
    A.    The Company desires to develop and maintain a substantial volume of sales in the Territory (as defined below) and obtain sales and marketing assistance from Representative.
    B.    The Representative desires to be appointed and serve as a sales representative of the Company for the Territory and the Company desires to appoint Representative as a sales representative for the Territory.
    NOW, THEREFORE, in consideration of and subject to the terms and conditions hereinafter set forth, it is agreed as follows:
    1.    APPOINTMENT.  Subject to the terms hereinafter set forth, the Company hereby appoints the Representative, and the Representative hereby accepts appointment as a sales representative in the Territory, except as set forth in Paragraph 2 (c), to solicit orders for the sale of the Company’s Products (as defined below) and perform those other duties as are specified herein. Representative acknowledges that all such sales of the Company’s Products shall be subject to the Terms and Conditions of Sale attached hereto as Exhibit A.
(a)    The scope of this Agreement shall cover only the specified products and services manufactured and/or supplied by the Company (the “Products”) as described on Exhibit B attached hereto.  If Company develops or adds any new standard or custom products or services thereafter Company shall, in its sole determination, notify Representative of whether Company wishes to add such new products or services to this Agreement.
(b)    The territory (the “Territory”) of the Representative shall be the territory specified in Exhibit C attached hereto. The Territory shall also include any Representative Registered Customer as defined below.
(c)     The Representative shall have the right to solicit orders within the Territory with the exception of orders:
    (i)    from House Accounts as defined below;
    (ii)    from another independent sales representative’s Registered Customer as defined below; and
    (iii)     placed by customers via the Company’s website by non Registered Customers.
Representative shall not be entitled to receive any commissions for these orders.
(d)    The Representative shall have exclusive rights to solicit orders from Registered Customers as defined below.
        (e)    “House Accounts” are those customers excluded from this Agreement and which are identified in Exhibit D attached hereto. Exhibit D may be amended by Company from time to time.
        (f)    A “Registered Customer” is customer is a company, facility or organization, or individual for which an independent sales representative has: (i) been the procuring cause of orders for Products from such customers, and (ii) registered such customer with the Company by completing the registration form set forth in Exhibit E, attached hereto. The completion of such registration form and its approval by the Company shall entitle an independent sales representative to exclusive rights with respect to such customer.
    3.    TERM.  This Agreement shall commence on the Effective Date and shall continue for a period of one (1) year and shall thereafter be automatically renewed for one (1) year periods on the anniversary of the Effective Date, subject to cancellation by either party as set forth in the Paragraph entitled “Termination”.
    4.    REPRESENTATIVE’S OBLIGATIONS.  The Representative shall:
        (a)    Use its best efforts to solicit and obtain orders for the Products and submit such orders to the Company for acceptance in accordance with the provisions of the Paragraph entitled “Prices, Terms and Sales Policies” and the Paragraph entitled “Acceptance of Orders and Conditions of Sale”;
(b)    Work with the Company in establishing periodic sales quotas for sale of Products within the Territory;
        (c)    Maintain a sales office in the Territory and conduct all of its business in its own name and in such a manner as it may see fit.  The Representative shall pay all the costs and expenses of its office and activities, including paying commissions or compensation to salespersons or persons retained or employed by the Representative to further its purposes under this Agreement.  The Representative shall obtain Worker’s Compensation Insurance to cover all of its employees and, if said employees or sales persons shall, in the course of their duties, be required to use any motor vehicle, obtain proper public liability insurance against personal injury, death and property damage.  The Representative shall also assume, pay and discharge, at the sole cost and expense of Representative, all taxes and conditions required from an employer under any and all employment insurance, income withholding tax, Social Security Acts and any other taxes applicable to the salespersons and other employees of the Representatives;
        (d)    Abide by the Company’s sales policies, including but not limited to the Quotation Guidelines as set forth in Exhibit F, attached hereto, and as may be amended from time to time by the Company; and Representative shall communicate these to the Company’s customers;
        (e)    Maintain Worker’s Compensation Insurance as prescribed by state law and a minimum of $2,000,000 comprehensive general liability insurance in the amount of $1 million per occurrence and $2 million aggregate including coverage for -, bodily injury, death and property damage and hold the Company harmless from responsibility arising there from.  The insurer, amount and nature of insurance as well as the termination and notice provisions of such insurance shall be subject to the prior approval of the Company.  The Company reserves the right to waive the Representative’s obligation to provide such insurance where such Company equipment is only of nominal value.  Representative shall furnish the applicable certificate of insurance and such policy shall name Company as an additional insured.
        (f)    Provide activity reports and estimated sales forecasts, as requested by the Company and keep the Company informed as to the general market conditions, as well as potential and specific orders within the Territory;
        (g)    Forward immediately to the Company, each inquiry and order received from a customer including all terms of such order;
        (h)    Not offer or give any rebate or part of commission earned by Representative to a customer in any sale of the Product;
        (i)    Conduct business in a manner that reflects favorably at all times on the Products and the good name, good will and reputation of the Company.  The Representative shall not engage in deception, misleading or unethical practices that are, or might be, detrimental to the Company, including but not limited to disparagement of the Company or its Products.  The Representative shall make no representations, warranties or guarantees to customers or prospective customers with respect to the specifications, features or capabilities of the Company’s Products that are inconsistent with the literature distributed by the Company; and
(j)    Meet or exceed the sales quotas established by the parties. Representative’s failure to meet or exceed at least two consecutive sales quotas shall be deemed a material breach of this Agreement.
    5.    THE COMPANY’S OBLIGATIONS.  The Company shall:
        (a)    Use its best efforts to manufacture and/or supply the Products for all orders it accepts;
        (b)    Use its best efforts to advise Representative in advance of any inability on its part to make full and timely delivery of any Product;
        (c)    Provide the Representative with copies of customer purchase orders and Product invoices; and
        (d)    Provide Representative with such engineering drawings, manuals, brochures, approvals from regulatory agencies and other Product data as the Company may have reasonable access to or publish in the normal course of its business, and shall provide Representative timely quotations, and advertising and promotional literature.
    6.    INDEPENDENT CONTRACTOR STATUS.  This Agreement is intended to secure sales activities of Representative as an independent contractor, and this Agreement shall in no way be construed as, nor is it intended to create, a partnership, joint venture or other joint interest between the Company and Representative.  Except as expressly provided herein, Representative has no authority to act for or on behalf of the Company or to bind the Company to any contract or in any manner without the express written approval of the Company.
    7.    TRADE SECRETS AND CONFIDENTIAL INFORMATION .  As a result of the Representative’s relationship with the Company, the Representative may have access to trade secrets and confidential information relating to the Company, its business, its products and services, its customers and/or persons or entities likely to become customers, and its methods of doing business, including, but not limited to, its pricing policies and practices, price lists, advertising methods, sales techniques, sales manuals, sales tools, software, sales presentation materials, customer lists and compensation practices.  Such information, records, and trade secrets are considered confidential.  The Representative agrees to maintain all such trade secrets and confidential information in the strictest of confidence.  Except as required in the course of the Representative’s relationship with the Company, the Representative shall not, without the Company’s prior written consent, either during the term of this Agreement or after its termination   for any reason, directly or indirectly disclose or communicate (or allow to be disclosed or communicated to any third person) any such confidential information or trade secrets with the exception that Representative may use sales presentation materials during the term of this Agreement but may not copy or reproduce such sales presentation.
        (a)     During the term of this Agreement, Representative shall not directly or indirectly engage in any manner in competition with the Company, nor manufacture, promote the sale of, solicit orders for, or handle or sell any product or service that is similar to or competitive with the Products.  
(b)    For a period of twelve (12) months after termination of this Agreement, Representative shall not, within the Territory, either: (i) solicit the business of any customer or prospective customer with whom Representative had contact with in connection with the sale of the Products, or (ii).engage in any manner as an employee, consultant or independent sales representative with any company whose products or services are similar to or competitive with the Products.
 (c)    Any decision as to the competitive nature of the Products shall be determined by the Company.  
    (a)    In the advertising and sale of the Products, the Representative may use the Company’s regular trade names and trademarks ("Trademarks") in such a manner as is prescribed by the Company.  For this purpose, the Company grants Representative a revocable, non-exclusive, royalty-free, limited license to use the Company Trademarks, provided the Representative displays the symbol “Ò” or "TM" adjacent to each use of Trademarks, or displays such other symbols and notices as may be prescribed by the Company.
    (b)  Representative acknowledges and agrees that the Company is the exclusive owner of the Trademarks.  The use of the Trademarks by Representative does not convey to Representative any right, title or interest in or to the Trademarks.  Representative may not register any Trademarks in any jurisdiction.
    (c)    Prior to use and distribution of any Trademarks, Representative shall submit to the Company, for its prior written review and approval, any and all uses of the Trademark to ensure compliance with the trademark usage guidelines established by the Company.
        (d)    In order to assume proper use and protection of the Company's Trademarks, Representative agrees to provide written notification to the Company if Representative purchases, is offered for purchase, or learns of any Products containing unauthorized Company Trademarks.
    10.    PRICES, TERMS AND SALES POLICIES.  All prices, discounts, specifications and terms governing the sale of Products shall be established by and under the control of the Company.  Without the prior written approval of the Company, the Representative shall not accept orders, make price quotations, delivery commitments or negotiate terms other than as approved and established by the Company.  Also, the Representative shall not alter, enlarge or limit orders, make representations or guarantees concerning the Products, or accept the return of or make any allowances for any Product, without the Company’s prior written approval.   Quotation guidelines shall be made in accordance with Exhibit F.
        (a)    All orders for the Products shall be submitted to the Company at its principal office for approval or rejection by an authorized employee of the Company and shall be subject to approval by the Company as to terms, volume and price.  The Company reserves the right to reject any order for whatever reason it may deem appropriate without obligation to Representative for commission.
        (b)    All orders to be accepted by the Company shall require a prior cash payment of the full sales price or be subject to prior credit approval by the Company.  All quotations for sales made by Representative to customers or prospective customers shall be made expressly subject to the approval and confirmation of the Company and shall not be binding upon either Representative or the Company until such approval is obtained.  If the Representative fails to obtain such prior approval, and the Company is bound by the customer to honor the order, and the Company’s revenue from the sale is reduced due to lower prices offered to such customer than stated on the Company published price list or quoted price for that period of time, the Company at its sole option, may recover these lost profits by adjusting all future commissions due the Representative until lost profits are fully recovered.
        (a)    The Representative shall be compensated for its services solely by means of a commission in accordance with Exhibit G, attached hereto, for sales of Products within the Territory.  Commissions set forth in Exhibit G shall be paid on the Net Selling Price of the Products.  “Net Selling Price” means the total price at which an order for Products is invoiced excluding shipping and insurance costs, sales, use, or excise taxes, tariffs, duties and export fees, and any allowances or discounts expressly granted to the customer.  All commissions earned by the Representative shall be due and payable to the Representative within thirty (30) days after the month in which Company receives payment from the customer.
         (b)    At the time of payment of commissions to Representative, the Company will send Representative a current commission statement with information on each sale on which commissions are paid including the customer, the type and number of units of each Product sold, the unit and total sales prices and the commission being paid.
        (c)    The Representative understands and agrees that the Company pays commissions not merely or primarily for the Representative’s efforts in obtaining a sales order, but rather for such services and, among other things, (i) the Representative’s essential follow-up work in connection with the sales; (ii) the Representative’s assistance in the collection of the sales amounts on sales that it has made; and (iii) the Representative’s efforts in resolving complaints and/or disputes that may arise in connection with any sales made by it.
        (d)    Split Commissions.   With the exception of a Registered Customer, in the event an order originating in the Territory is placed with the Company and is based on the activities of more than one representative, the following shall serve as general guidelines for commission split between the representatives:
(i)    For involvement in all the Engineering/Approval activities:
Fifty Percent (50%)
(ii)    For involvement in all the Order Placement of Products activities:
Fifty Percent (50%)
In event of disputes as to which party is entitled to commission or any part thereof, the Company reserves the right to make the final and binding determination as to the allocation thereof.
        (e)    Unless otherwise specifically agreed to in writing, the Representative shall not be entitled to commissions on:
    (i)    The invoices covering repair charges, or charges for exchange of complete units or components thereof, under the Company warranty or exchange programs;
    (ii)    Orders rejected by the Company;
    (iii)    Credit memos or cash payments for advertising, year-end rebates or volume allowances;
    (iv)    Any House Account or Registered Customer of another independent sales representative; and
    (v)    A commission which has been paid by the Company for an order that is either subject to a bankruptcy filing, or which has otherwise not been paid shall be subject to deduction from future commissions.
    13.    CANCELLATION OF ORDERS AND REFUNDS.  Only the Company may cancel any outstanding order, accept the return of the Product or make allowances for refunds.  The amount and net effect of any such cancellation, return, allowance or adjustment made in accordance with the provisions of this Paragraph shall be reflected, and any adjustments computed, in the commissions payable to Representative pursuant to the Paragraph entitled “Compensation”.
    14.    TERMINATION.
        (a)    This Agreement may be terminated by either party by submitting written notice to the other of such termination upon the occurrence of any of the following events:
(i)    The other party shall file a petition in bankruptcy or shall be adjudged bankrupt;
    (ii)    The other party shall become or be declared insolvent;
    (iii)    A receiver of all or substantially all of the property of the other party shall be appointed and not removed within (30) days;
    (iv)    The other party shall make a general assignment for the benefit of its creditors;
(v)    The substantial failure by the other party to perform one or more of its obligations hereunder which failure of performance shall not have been cured within  sixty (60) days after written notice specifying the nature of such failure. Representative’s failure to agree upon periodic sales quotas or failure to meet those sales quotas established pursuant to Paragraph 4 (b) shall be deemed a substantial failure to perform.
(b)    Either party may elect not to renew the Agreement by giving the other at least sixty (60) days notice prior to the end of the first one (1) year term. Beginning in the second year, either party may terminate this Agreement, at any time, with or without cause upon  thirty (30) days written notice to the other.
        (c)    In the event of termination, this Agreement shall remain applicable to any order for the Products accepted by the Company prior to the termination date of this Agreement as follows:
(i)    For those orders for Products accepted by the Company prior to termination date and shipped within 60 days after the termination date of this Agreement, Representative shall receive 100% commission payments;
(ii)    For those orders for Products accepted by the Company prior to the termination date and shipped between 61 days and 90 days after the termination date, Representative shall receive 75% of commission payments;
(iii)    For those order for Products accepted by the Company prior to the termination date and shipped between 91 days and 120 days after the termination date, Representative shall receive 50% of the commission payments. Thereafter, Representative shall not be entitled to receive any commission payments.
Commission payments on all orders not filled or for which full payment has not yet been received shall be made within thirty (30) days after the month in which the Company receives payment from the customer.  Representative shall not be entitled to commissions on orders for purchase of the Products received  prior to termination that are not actually accepted by the Company by the effective date of termination.
        (d)    Representative agrees that upon termination of this Agreement or at any time upon request of the Company, Representative shall immediately surrender and return to the Company all copies of all lists, books, and records of or pertaining to Representative’s customers or business, and all property of the Company that is in the Representative’s possession or control.  Such books and records shall include all records of the accounts of customers, engineering drawings, manuals, brochures, approvals from regulatory agencies, other Product data, price lists, advertising and promotional literature, and any other records and books relating in any manner whatsoever to the customers of the Company, whether prepared by the Representative or otherwise coming into its possession.
    15.    INDEMNIFICATION.  Each party shall defend, indemnify and hold the other party harmless from and against all claims, actions, liabilities, damages, judgments, losses, costs, expenses and penalties, including reasonable attorneys’ fees and costs, caused by reason of any personal injury or death sustained by any person, or property damage arising from or in connection with any negligence, omission, act, or default of the indemnifying party. The foregoing shall not relieve either party from liability for its own negligence, omission, act, or default.
    16.    ENTIRE AGREEMENT;  AMENDMENTS.  This Agreement and the Exhibits referred to herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any and all prior agreements or communications between them whether written or oral, regarding the subject matter hereof.  This Agreement may not be amended or changed without the express written authorization by both parties.
    17.    NO ASSIGNMENT OF AGREEMENT.  It is mutually agreed that the consideration for entering into this Agreement is the personal reputation, qualifications and abilities of the Representative.  Accordingly, the obligations of the Representative hereunder are not subject to assignment, transfer or delegation, except with prior written consent of the Company. If the Company grants its consent to an assignment, transfer or delegation, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
    18.    NOTICES.  All notices, requests, demands and other communications under this Agreement shall be in writing and shall be: (a) e-mail or other electronic means of transmitting written document; and (b) sent to the parties at their respective addresses indicated herein by overnight mail.  The respective addresses to be used for all such notices, demands and requests are as follows:  

To the Company:                        To the Representative:
Bryan Piernot, President                                                    _____________________________
OEM Printed Circuit Board Replacements            _____________________________
1600 Aspen Commons Ste 100-107                _____________________________
Middleton WI 53562                        _____________________________
PH:  (608) 513-5315                        _____________________________
E-Mail:                  _____________________________
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or within seventy-two (72) hours after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed to the party at its address set forth on the signature page of this Agreement, or any other address that either party shall designate by written notice to the other.
    19.    SEVERABILITY.  If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions shall continue to in full force and effect.
    20.    FORCE MAJEURE.  The Company shall not be liable for delay in filling such orders where such delay is caused by an act of God, transportation unavailability or delay, war conditions, governmental regulation or action, embargo, fire, flood, accident, strike or other labor trouble or any other cause beyond the Company’s reasonable control, whether similar or dissimilar to the foregoing.
(a)    All questions relating to the interpretation or effect of this Agreement shall be resolved in accordance with the laws of the State of Wisconsin without regard to the choice of law provisions thereof and not including the U.N. Convention on Contracts for the International Sale of Goods, if otherwise applicable.  Any legal action or proceeding arising out of or relating to Agreement shall be maintained in a court of competent jurisdiction that is located in, or includes in its jurisdictional boundaries, in Dane County, Wisconsin.
(b)    In the event that a dispute arises between the parties pertaining to any matters related to this Agreement, the following procedure shall apply and the parties shall make all best efforts to  resolve the dispute in good faith as quickly as possible: (i) In the event of any such dispute, the matter shall be immediately referred to the respective Chief Financial Officer of each party; (ii) In the event that those Chief Financial Officers cannot resolve such dispute within 30 days, the matter shall be submitted to the respective Chief Executive Officer of each party; (iii) In the event that the respective Chief Executive Officers cannot resolve such dispute within 10 days, then either party may pursue any other remedy available under law or in equity.
    22.    WAIVERS.  The failure of either party, at any time, to require performance by the other party under any provision of this Agreement shall not be deemed to be a waiver of the right to require such performance by the other party at any item thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken, or held to be, a waiver of any succeeding breach of such provisions, or as a waiver of the provision itself.
23.    HEADINGS.  The captions to the sections in this Agreement are inserted for convenience only and shall not effect the construction or interpretation hereof.
24.    COUNTERPARTS.  This Agreement may be executed on counterparts and exchanges by means of facsimile or electronic transmission.  Each counterpart shall be deemed an original as against the party whose signature appears thereon, but all of which taken together shall constitute one and the same instrument.
25.    CONSTRUCTION.   This Agreement is the result of arm’s length negotiations between the parties and each party has agreed to the use of the particular language in this Agreement.  The parties further acknowledge that any questions of doubtful or unclear interpretation are not to be resolved by any rule or interpretation against the drafters, and that
each party has participated in drafting this Agreement.  Accordingly, this Agreement is to be construed without regard to the party or parties responsible for its drafting or preparation.

IN WITNESS WHEREOF, the undersigned have executed or caused the execution of this Agreement as of the date herein.

OEM Printed Circuit Board Replacements                            
COMPANY                        REPRESENTATIVE

By:__________________________            By:____________________________    

Title:________________________        _    Title:___________________________    

Date:_________________________        Date:___________________________    

Exhibit A:   Terms and Conditions of Sale
Exhibit B:   Products
Exhibit C:  Territory
Exhibit D:   House Accounts
Exhibit E:   Registration Form for applying for Registered Customer
Exhibit F:   Quotation Guidelines
Exhibit G:   Commissions