EXHIBIT 8.1.2.
XXXXXX, INC.
BROKER-CLIENT CONTRACT
----------------------
THIS Agreement is made this 10th day of January, 2005 by and between eChex,
Incorporated, a corporation duly organized under the laws of the State of
California, harem called the CLIENT, and Xxxxxx, Inc. d/b/a Xxxxxx Sales &
Marketing Company, a corporation organized under the laws of the State of
Delaware, herein called the BROKER.
WHEREAS, CLIENT is a manufacturer and seller, of among other things,
certain merchandise or products, as listed in Attachment No. 1 to this
Agreement, and desires to secure the services of a BROKER in the territory
hereinafter described, to negotiate the sales of said merchandise or products in
CLIENT'S name and for its account; and
WHEREAS, BROKER is desirous of securing the exclusive right to
negotiate sales of said CLIENT'S products or merchandise in the territory.
NOW THEREFORE, in consideration of the premises and covenants and
undertakings herein contained.
IT IS MUTUALLY AGREED AS FOLLOWS:
1) TERRITORY. CLIENT hereby appoints BROKER, and BROKER hereby agrees to
act for CLIENT, as its (or his, as the case maybe), sole and exclusive
Representative for negotiations of sales of the merchandise or products
hereinabove enumerated, subject to the terms, provisions and conditions
hereof, within the territory as described in Attachment No. 2 to this
Agreement.
2) SALES NEGOTIATIONS. All sales negotiations by BROKER for the account of
CLIENT shall be conducted in accordance with such prices, terms and
conditions as specified by CLIENT. All orders that BROKER solicits
shall be subject to CLIENT's acceptance or rejection.
3) INDEPENDENT CONTRACTOR. It is further understood that BROKER shall act
as an Independent Contractor of CLIENT, that neither BROKER nor its
employees shall be considered employees of CLIENT, and neither party
shall in any event be held liable or accountable for any obligations
incurred by either party other than as specified herein, it being
specifically understood that the respective businesses of each of the
parties shall be operated separate and apart from each other.
4) CONFLICTS. In the event of product conflicts, both parties shall make
every reasonable effort to reach an agreement on a method for BROKER to
represent the products involved.
5) APPLICABLE LAW. The laws of the State of Florida shall govern the
application and interpretation of this Agreement.
1
6) ENTIRE AGREEMENT. It is understood that this Agreement cancels and
supersedes any and all prior agreements, oral or written. made between
the parties hereto, and can only be modified by an agreement in
writing, signed by all applicable parties.
7) ARBITRATION. Any, controversy or claim arising out of or relating to
this Agreement shall be settled by arbitration in accordance with the
rules of the American Arbitration Association and judgment may be
entered in any court having jurisdiction thereof.
8) SOLICITATION OF EMPLOYEES. CLIENT and BROKER agree that during the term
of this Agreement and for a period of six-months thereafter, that
neither party will solicit for hire, hire or otherwise encourage an
employee of the other party to leave their current employment in any
manner or for any reason whatsoever.
THE CLIENT AGREES AS FOLLOWS:
9) EXCLUSIVE REPRESENTATION. BROKER shall be the sole and exclusive Sales
Representative of CLIENT for negotiating sales of the merchandise and
products herein specified in the described territory, and CLIENT will
either (a) make no sales of said merchandise and products in such
territory other than those negotiated by BROKER, or (b) in case of
sales made by CLIENT in such territory other than those negotiated by
BROKER, or on sales made otherwise for shipment of CLIENT'S merchandise
or products into the said territory for resale CLIENT will pay BROKER a
commission or brokerage on the merchandise and products so sold at the
rate specified in the following paragraph. Further, CLIENT agrees not
to enter into any contract with any other Sales Representative in the
territory specified herein during the life of this Agreement.
10) COMMISSIONS / RETAIL SERVICE FEES. Client agrees to the following
commissions/fees:
11) To pay BROKER without deduction or offset, a commission or
brokerage, of xx% percent on each and every sale, as provided
herein the said percentage rate of commission, or brokerage,
to be computed on the price of the merchandise or products
sold before discounts and allowances are figured, said
brokerage payment to be made promptly within 10 days after the
end of each month.
12) Notwithstanding the amount due under the commission rate shown
above, BROKER shall be paid a minimum fee of $xxxxxx for the
services defined on Attachment C. Special Services not defined
in Attachment C shall be compensated on an hourly basis or
flat-fee as agreed upon from time to time.
13) A monthly residual fee of $ xxxxxx per active account, per
month, for each and every active card sold through, on behalf
of/for, or directly by Xxxxxx Sales and Marketing Company or
companies. This fee shall be paid to Xxxxxx Sales and
Marketing in perpetuity, and/or as long as the account is
active with client, and is not subject to the length of term
provision contained in this contract.
14) CLIENT shall use a third-party card processor to maintain accurate
records, books and accounts regarding sales made under this Agreement.
CLIENT shall require
2
third-party processor to calculate and make monthly payments direct to
BROKER according to the terms of this Agreement. CLIENT shall notify
BROKER at least thirty (30) days prior to change of third-party card
processor. BROKER agrees to accept payment from third-party process.
BROKER shall have the right to review and inspect from time to time
(upon reasonable prior notice) such records, books and accounts, to
confirm that amounts paid or to be paid by CLIENT hereunder were
correctly calculated in accordance with the terms of the Agreement.
BROKER shall have the right to have its internal/external auditors audit
CLIENT's policies and procedures relating to CLIENT's operations,
including, without limitation, those policies and procedures related to
the services provided hereunder.
15) ELIGIBLE BUYERS. To permit BROKER, consistent with the terms of this
Agreement, to negotiate sales to any and all prospective Buyers of
CLIENT'S said products throughout the entire territory defined in
Attachment 2, including all customer locations extending beyond the
defined territory where the buying office is located within the defined
territory or where the customer purchases CLIENT's products through a
wholesaler located within the defined territory.
16) SHIPMENTS. To ship the merchandise or products sold as BROKER may
specify. CLIENT shall he given reasonable notice with respect to the
required shipments. CLIENT accepts full responsibility for granting
credit to Buyers
17) SALES AND PROMOTIONAL POLICIES. To keep BROKER fully informed on all
sales and promotional policies and programs affecting the specified
territory.
18) INDEMNIFICATION. If any claim or action be made or filed against
BROKER, claiming loss or injury of any nature whatsoever, as a result
of defect in any merchandise, purchase or use of any product
distributed by CLIENT or for actions by any employee of CLIENT, to
defend, hold harmless and indemnify BROKER from any and all toss or
damage, costs and expenses, including legal fees, incurred by it.
THE BROKER AGREES AS FOLLOWS:
19) CLIENT'S INSTRUCTIONS. To carryout CLIENT'S instructions with respect
to the sales of the merchandise and products specified herein.
20) COMPETITIVE PRODUCTS. To not enter into any binding agreements with
competitors for the term of the agreement.
21) REPORTING PURCHASE ORDERS AND NEGOTIATIONS. To promptly report all
negotiations and purchase orders of specified merchandise and products
for confirmation or approval by CLIENT, and in negotiating sales to
prospective Buyers within the specified territory, to report
negotiations to CLIENT.
22) ASSIST IN COLLECTIONS. To assist CLIENT in effecting prompt and full
payment by Buyers for all deliveries of merchandise and products sold.
The final determination as to credit and credit terms shall be made
only by CLIENT.
3
23) CONTACT PROSPECTIVE BUYERS. To contact prospective Buyers in the
assigned territory in furtherance of sales of specified merchandise and
products of CLIENT.
24) INDEMNIFICATION. If any claim or action be made or filed against
CLIENT, claiming loss or injury of any nature whatsoever; as a result
of actions by any employee of BROKER, to defend, hold harmless and
indemnify CLIENT from any and all loss or damage, costs and expenses,
including legal fees, incurred by it.
DURATION OF AGREEMENT
25) TERM/TERMINATION. This agreement shall be for xxxxxx and shalt be
automatically renewed for a xxxxxx period after the end of each
xxxxxx term, unless either party gives written notice of non-renewal
to the other at least 30 days prior to the end of their current term.
Either party may terminate this agreement in the case of default by the
other party to any of the terms of this agreement if such default shall
have continued for a period of thirty (30) days after written notice
specifying the same shall have been given by the defaulting party.
a) In the event BROKER elects to terminate this Agreement, it is
understood that BROKER will be paid commission earned, without
deductions or offset, for all shipments of CLIENT'S products
through the date of termination.
b) In the event CLIENT elects to terminate this Agreement. it is
understood that BROKER will be paid commission earned, without
deductions or offset, for all shipments of CLIENT'S products
through the date of termination and for a period of 30 days
thereafter if Agreement is terminated without cause.
26) SPECIFIC TERMS AND CONDITIONS. Specific terms and conditions to the
agreement are state in ATTACHEMENT C to this agreement and therefore
ATTACHEMENT C is hereby incorporated and made part of this agreement.
IN WITNESS WHEREOF. the parties hereto have signed this Agreement,
thereunto duly authorized on the clay and year above written.
CLIENT: eCHEX, Inc.
--------------------------
000 Xxxx Xxxxxxx, 0xx Xxx
--------------------------
Xxxxxxx Xxxx, XX 00000
--------------------------
By: /s/ Xxxxxxxxx Xxxxxx
--------------------------
President
--------------------------
(Title)
4
BROKER: Xxxxxx Sales & Marketing Co.
------------------------------
0000 Xxxxxxxxx Xxxxxx Xxxxxxx
------------------------------
Xxxxxxxxxxxx, XX 00000
------------------------------
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
Director - Operational Control
------------------------------
(Title)
5
XXXXXX, INC.
BROKER-CLIENT CONTRACT
ATTACHMENT # 1 - PRODUCT DESCRIPTIONS
The eChex family of brands offered to the retail class of trade.
6
XXXXXX, INC.
BROKER-CLIENT XXXXXXXX
XXXXXXXXXX # 0 - XXXXXXXXX
Xxx Xxxxxx Xxxxxx and its territories for the Supermarket & Independent retail
class of trade as defined as a retail outlet maintaining 3 or more checkstands
per unit.
7
XXXXXX, INC.
BROKER-CLIENT CONTRACT
ATTACHMENT # C - SPECIFIC TERMS & CONDITIONS
