EXHIBIT 10.20
BOSTON MARKETING CO.
SALES REPRESENTATIVE AGREEMENT
AGREEMENT, entered into as of the 28th day of October, 1996, by and between
Edudata Corporation, a Delaware corporation, having an office at 000 Xxxxx
Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000 ("Edudata") and
Boston Marketing Company, Ltd., a Japanese corporation located at 00-0, 0-Xxxxx
Xxxxxxx-Xxxxxxx, Xxxxxxx-xx, Xxxxx, Xxxxx 116 ("BMC"):
RECITALS
WHEREAS, Edudata is engaged in, among other things, the business of
manufacturing and selling intraoral cameras and processing units ("Products")
and desires to engage the services of BMC to promote the sales of and solicit
and obtain orders for the Products upon the terms and conditions as
hereinafter set forth; and
WHEREAS, BMC is willing to provide its talent, knowledge and services to
Edudata for said purposes, subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual agreements and understandings
stated herein, the parties agree as follows:
1. APPOINTMENT AS SALES REPRESENTATIVE
a. Edudata hereby appoints BMC as its exclusive sales representative in
the countries of Japan and the People's Republic of China to solicit orders in
the name of Edudata for the sale of Products.
b. Other countries within the Far East may be added to BMC's sales
territory upon the written agreement of the parties. Such additions may be
exclusive or non-exclusive as the parties may agree. Should Edudata obtain any
inquiries from Japan or the People's Republic of China, it shall immediately
forward such inquiries to BMC for handling. If Edudata obtains any substantive
inquiry from any other country within the Far East requesting that any
exclusive rights be granted, it shall first provide written notice of such
inquiry to BMC and BMC shall have a reasonable time thereafter, not to be less
than 10 business days and not to be more than 25 business days, within which to
agree to match all material terms of such inquiry. Should BMC match all such
terms, it shall be granted the rights requested by the inquiring entity; should
it fail to match all such terms, Edudata is free to grant the requested rights
to the inquiring entity.
c. In all agreements with a customer within the Far East, Edudata shall
impose, as a requirement of sale and continuing sales, that such customer agree
that any transshipment of the Products outside of the country of destination is
prohibited and that Edudata shall immediately suspend all further shipments to
such customer upon
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violation of such agreement. In addition, and as a condition of sale and
continuing sales, Edudata shall require that such customer agree not to
disclose, disseminate or expose any confidential or proprietary information
belonging to Edudata for any use or purpose except solely in connection with
the sale of Products and then only within the country of destination.
d. In addition to the above rights, Edudata authorizes BMC to separately
sell monitors, cabinets and other accessories or peripheral items to customers
obtained by BMC. All income and expenses associated with such sales shall be
borne by BMC. BMC shall advise Edudata upon receipt of each order from its
customers as to whether the sale includes or excludes such items.
2. TERM
a. This Agreement shall be effective from the date indicated above and
shall continue for five years thereafter unless terminated by either party
pursuant to the provisions of paragraph 11 hereof.
b. Unless terminated sooner, this Agreement shall automatically extend for
an additional five year term upon mutual agreement, negotiated in good faith.
Any agreement of renewal shall be negotiated no later than 90 days before the
expiration of the term.
3. PRODUCTS
a. Changes to the Products may be made provided that 90 days prior written
notice is given by Edudata to BMC and further provided that any such changes
will be uniformly applied to all of Edudata's Products so affected.
b. Should Edudata develop or offer for sale any other product, it shall
grant the exclusive rights to such products to BMC for Japan and the People's
Republic of China and the right of first refusal as described in paragraph 1b
above to other countries within the Far East.
4. PRICES
a. In making any written quotations, BMC shall only use such forms and
shall quote only such prices as have been approved by Edudata and are effective
as of the date of quote. Copies of all such quotations shall be delivered to
Edudata at the same time that such quotations are delivered to the customer.
b. BMC is not permitted to offer any discount to a customer without
Edudata's prior written approval.
c. All price lists shall become effective as described therein, and shall
be deemed to be received by BMC 48 hours after delivery
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thereof by facsimile. Any quotations which are submitted to a customer prior to
the effective date of any price modification shall be honored by Edudata.
d. All prices are subject to change or modification from time to time at
Edudata's sole option and upon 90 days prior written notice to BMC.
5. PAYMENT AND COLLECTION
a. All Products sold by BMC shall be billed by Edudata with a copy of such
billing to BMC. All payments shall be made directly to Edudata, BMC having no
authority to collect any payments from its customers unless directed to do so
by Edudata in writing.
b. BMC shall also receive all orders from customers that it obtains and is
authorized to direct its customers to deliver such orders directly to BMC.
c. BMC shall either directly receive all communications from its customers
(and is authorized to so direct its customers) or shall be copied with all such
communications if received directly by Edudata.
6. ORDERS PROCESSING
a. All orders obtained by BMC are subject to the written acceptance of
Edudata and its credit department after mutual discussions and negotiation.
Edudata shall accept any order unless good cause exists for its non-acceptance.
b. Edudata will notify the customer of its acceptance or rejection of an
order, and copies thereof shall be sent to BMC.
c. BMC shall not accept orders in Edudata's name or upon terms varying
from those established by Edudata without Edudata's prior written approval.
7. COMMISSIONS
a. The commissions payable to BMC by Edudata for all sales to Japanese
customers shall be 12% and 15% of all sales to customers within the People's
Republic of China. All commissions will be based upon the net invoice price,
which is defined to mean the price at which an order is invoiced to the
customer, including any increases or decreases in the total amount of the order,
but excluding shipping and mailing costs, taxes, insurance and any credits,
refunds, returns, allowances or discounts granted to the customer by Edudata.
Payment of all commissions due and owing to BMC shall be made by Edudata on or
before the 10th day following the date of Edudata's receipt of payment.
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b. If any customer refuses to pay the purchase price or is otherwise
withholding part or all of the purchase price based on any valid or reasonable
claim that the Edudata has not met specifications, has misrepresented its
ability to perform or the capabilities of the Product, or because Edudata is
otherwise in default under or in breach of any agreement or of any provision of
any contract with the customer, then BMC's commission on the sale shall be due
and payable whether or not the full purchase price is ever received by Edudata.
c. The commissions provided above shall constitute BMC's total and
complete remuneration for all of its services hereunder. BMC shall not be
entitled to reimbursement for any expenses incurred in its performance under
this Agreement unless otherwise agreed in writing in advance.
d. With each payment made by Edudata to BMC, Edudata shall enclose a
statement setting forth all sales which are covered by the payment, the amount
of commission due BMC, and other pertinent data showing the calculation of the
amount of commissions due BMC.
e. No commission is due on repairs and sales of spare parts, on any
tooling or "set-up" charges including engineering charges or fees, on any fees
or costs incurred in installation or compliance with local codes, ordinances or
regulations, and qualification test charges, provided that the foregoing
charges are billed or itemized separately from the Product cost.
f. BMC shall have the right, upon reasonable advance written notice, to
examine only such books and records of Edudata as are needed to determine the
accuracy of commission payments made to BMC.
g. All commission payments shall be "gross" to BMC and BMC shall be solely
and separately liable for the payment of all income and other related
self-employment taxes due to any governmental authority by virtue of the
payment of such amounts.
h. BMC shall be entitled to its commission on all sales to all customers
obtained by BMC regardless of the length of the time involved before such
customer ceases ordering Product from Edudata, even if the sale occurs after
the termination, expiration or cancellation of this Agreement.
8. EDUDATA'S DUTIES
a. Edudata shall, promptly upon receipt, forward to BMC copies of all
inquiries, quotations, correspondence and notations of important phone calls
pertaining to potential or existing customers in Japan or the People's Republic
of China.
b. Edudata will supply BMC with a reasonable supply of brochures,
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circulars and other sales literature and data.
c. Edudata will use reasonable efforts to arrange for Product
demonstrations with potential customers when requested to do so by BMC.
9. BMC'S DUTIES
a. BMC is an independent contractor and is not an employee of Edudata and
is not authorized to accept orders on behalf of Edudata. BMC shall have no
right or authority to incur, assume, or create, in writing or otherwise, any
warranty, liability or obligation of any kind, express or implied, in the name
of or on behalf of, or which may obligate Edudata, except such which are
authorized by Edudata or contained in literature delivered to BMC by Edudata.
b. BMC shall use its best efforts and devote such time as may be
reasonably necessary to sell and promote the sale of the Products.
c. BMC will conduct all of its business in its own name and in such manner
as it may see fit, paying for all of its expenses and activities and being
responsible for the acts and expenses of its agents and employees.
d. BMC is authorized to advertise or disclose its relationship with
Edudata as its authorized sales representative.
10. INDEMNITY BY EACH PARTY TO THE OTHER
Each party shall defend, indemnify and hold the other harmless, and each and
all of its officers, agents and employees, from and against all claims,
demands, causes of action, injury, losses, liability or damages, including
reasonable attorneys fees, arising out of a party's default or breach of any
obligation, representation or warranty contained in this Agreement or in any
agreements entered into by Edudata and its customer, or from any
misrepresentation, fraud, negligence or other improper or illegal activity or
conduct engaged in by such indemnifying party.
11. TERMINATION
a. Either party shall have the right to terminate this Agreement
immediately upon delivery of written notice for cause. "Cause" is the
occurrence of any of the following events:
(1) Upon the dissolution or liquidation of the other party or the
cessation of its business;
(2) In the event the other party becomes insolvent, makes an
assignment for the benefit of creditors, or is adjudged a bankrupt;
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(3) If the other party breaches any of the material terms, covenants,
conditions or provisions of this Agreement and fails to cure such breach within
30 days after delivery of written notice to the defaulting party. However, the
time for cure of non-payment of commissions is three days from the date of
Edudata's receipt of payment from the customer involved.
12. NOTICES
a. Any notice to be given hereunder shall be in writing and either
delivered personally or sent by facsimile, or certified or registered mail,
return receipt requested, addressed at its principal office address.
b. Notice properly sent will be deemed to have been duly given as of
forty-eight hours following the deposit of such notice with the United States
postal authorities, or if given personally or by facsimile, then Notice shall be
deemed given on the date of transmittal.
14. ASSIGNMENT
The benefits of this Agreement may not be assigned nor the duties delegated by
either party to another without the prior written consent of the other party and
subject to the foregoing provision shall be binding upon the successors,
assigns, and legal representatives of the parties hereto.
15. MERGER
This Agreement constitutes the entire understanding between the parties and
supersedes all prior oral or written agreements between the parties concerning
the subject matter hereof. This Agreement may not be altered, modified or
changed except in a writing executed by both parties.
16. CONSTRUCTION AND VENUE
This Agreement shall be deemed to have been entered into and governed in all
respects by the laws of the State of California, and the venue for any action or
dispute arising out of or relating to this Agreement or the performance by
either party hereunder shall be Los Angeles County, California, to which venue
and jurisdiction the parties do hereby attorn and consent. In the event that any
provision hereof contravenes any applicable law, said provisions shall be deemed
to be deleted herefrom, and such deletion shall not affect other provisions of
this Agreement.
17. TRADE NAME
BMC is not authorized to list in telephone directories or indicate on
stationery, personal calling cards or other sales literature
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used in BMC, any designation which might imply that Edudata is responsible for
BMC's acts. The name, trademark, logos, brand names or trade names (hereinafter
collectively "trademarks") of Edudata shall at all times be within the strict
control of the Edudata, inasmuch as Edudata is the owner or licensee thereof.
However, BMC is licensed to use Edudata's trademarks strictly and solely in
connection with the solicitation of orders for the Products. This license shall
terminate immediately upon termination of this Agreement and BMC shall
thereupon immediately remove any reference to Edudata from any ad or business
card or other document belonging to BMC and BMC shall cease and desist from
using such trademarks in the future.
18. WAIVER OF JURY TRIAL
The parties waive their respective right to trial by jury of any cause of
action, claim, counter claim or cross complaint in any action, proceeding,
arbitration and/or hearing brought by either party against the other on any
matter whatsoever arising out of or relating to this Agreement, the
relationship of the parties created by this Agreement, or associated with said
relationship, the performance of either party under this Agreement or any
claim of injury or damage, or the infringement of any remedy under any law,
statute or regulation, now or hereafter in effect.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first above written.
"Edudata"
/s/ XXXXXX XXXXXXXXX
------------------------------
Edudata Corporation
By: Xxxxxx Xxxxxxxxx
Its: President
"BMC"
/s/ XXXXXX XXXXXXX
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Boston Marketing Company, Ltd.
By: Xxxxxx Xxxxxxx
Its: President
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