INDEPENDENT SALES REPRESENTATIVE AGREEMENT
This Agreement, entered into as of October 1, 1996, by and
between XXXXXX MEDICAL SALES ASSOCIATES (the "Independent Sales
Representative"), and XXXXXXXXXX LABORATORIES, INC., a Texas
corporation (the "Company").
WITNESSETH:
WHEREAS, the Company is engaged in the business of manufacturing
and selling various medical products and supplies; and
WHEREAS, the Company desires to engage the Independent Sales
Representative to promote the sale of and solicit orders for the
Company's products, and the Independent Sales Representative desires to
be so engaged;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereby agree as follows:
1. Engagement. The Company hereby appoints and engages the
Independent Sales Representative, and the Independent Sales
Representative hereby accepts such appointment and engagement, to
promote the sale of and solicit orders for the Company's products in
accordance with the terms and conditions of this Agreement.
2. Duties of Independent Sales Representative. The
Independent Sales Representative shall use its best efforts to promote
the sale of the Company's products, to solicit orders therefor and to
perform such other functions of a Manufacturer's Independent Sales
Representative as the Company shall from time to time request. The
Independent Sales Representative shall keep the Company informed at all
times of the Independent Sales Representative's progress and of any
problems relating to or affecting the Company's business, products or
customers. The Independent Sales Representative shall visit existing
and prospective customers in person as often as necessary to carry out
its duties in order to meet its sales goals hereunder in a legal and
ethical manner and in accordance with normal and accepted business and
regulatory practices. The Independent Sales Representative shall bear
all expenses incurred by it in carrying out its duties and
responsibilities under this Agreement.
3. Sole Area of Responsibility. The geographic area in which
the Independent Sales Representative shall devote its sole efforts and
for which it shall have sole responsibility under this Agreement shall
be all of the zip codes in the State(s) of Alabama and Georgia and the
mutually agreeable zip codes in Northern Florida and Tennessee, as
listed and described on Exhibit B attached hereto and made a part
hereof (the "Sole Area of Responsibility"). Sales outside the Sole
Area of Responsibility shall not be subject to a commission.
4. Term and Termination. The term of this Agreement shall
commence on the date hereof and shall expire two (2) years after
January 1, 1997, unless earlier terminated in accordance with any of
the following provisions:
(a) This Agreement may be terminated at any time by
written agreement of the parties hereto.
(b) This Agreement may be terminated by the Company at
any time by written notice given to the Independent Sales
Representative (i) if the Independent Sales Representative, his
employees or agents commit a material breach of this Agreement,
such a material breach being defined as non-compliance with the
confidentiality provisions herein or non-compliance with FDA
rules or regulations, (ii) if the Independent Sales
Representative or any of its agents or employees commits any act
of fraud or dishonesty with respect to the Company or any of its
customers, is convicted of any crime (other than minor traffic
violations), or engages in any conduct which tends to hold the
Company up to ridicule by others or is otherwise detrimental to
the best interest of the Company and Independent Sales
Representative fails to take immediate action, agreeable to the
Company to correct the situation, and (iii) if Xxxx Xxxxxx shall
die, shall become totally and permanently disabled, or shall
suffer any physical or mental impairment which exists for sixty
(60) days or more (whether or not consecutive) and which, in the
opinion of the Company, adversely affects the ability of the
Independent Sales Representative to carry out its duties and
responsibilities under this Agreement.
(c) This Agreement may be terminated by the Independent
Sales Representative at any time by written notice given to the
Company if the Company commits a material breach of this
Agreement.
(d) This Agreement may also be terminated by thirty (30)
days written notice if Independent Sales Representative fails to
increase territory net sales by five percent (5%) or more from
1/1/97 to 1/1/98 over comparative sales of 1/1/96 to 1/1/97.
After 1/1/99 the renewal of this Agreement shall be upon the
mutually agreeable terms.
The expiration or termination of this Agreement shall not terminate,
limit or otherwise affect any rights or obligations of the parties
hereto which shall have arisen hereunder at or prior to the time of
such expiration or termination.
5. Commissions.
(a) In consideration of the services performed by the
Independent Sales Representative hereunder, the Company shall pay
the Independent Sales Representative commissions, at the
applicable rates specified in Schedule A attached hereto and made
a part hereof, on all products specified in Schedule A which the
Company sells during the term of this Agreement to customers
located and doing business in the Sole Area of Responsibility.
Such commissions shall be deemed earned when the products are
shipped and billed by the Company. The amount of the commissions
payable hereunder shall be determined on the basis of the invoice
prices of the products sold (which shall be the prices charged by
the Company to its distributors), net of returns, allowances,
discounts and adjustments, and exclusive of freight, insurance
and other shipping and handling charges, taxes, interest, late
fees, service or carrying charges and other similar charges. The
Company shall have the right to delete product or otherwise
change the list of products specified on Schedule A at any time,
provided the Company gives written notice of such changes to the
Independent Sales Representative not less that sixty (60) days
prior to the date such changes are to become effective.
(b) Within fifteen (15) days after the end of each
calendar month during the term of this Agreement:
(i) The Company shall furnish to the Independent
Sales Representative a statement showing all products
shipped to, products returned by, and allowances, discounts
and adjustments granted to customers in the Sole Area of
Responsibility, and all debits and credits to the
Independent Sales Representative's commission account,
during such month; and
(ii) The Company shall pay to the Independent Sales
Representative all commissions earned during such month,
net of any deductions due to products returned by or
allowances, discounts and adjustments granted to customers
in the Sole Area of Responsibility during such month.
(c) The Company shall be entitled to recover from the
Independent Sales Representative an amount equal to all
commissions paid by the Company to the Independent Sales
Representative in respect of products which are subsequently
returned by the customer or with respect to which the Company
subsequently grants an allowance, discount or adjustment to the
customer. The Company may recover such amount either by
requiring the Independent Sales Representative to make payment
thereof to the Company or by deducting such amount from future
commissions earned by the Independent Sales Representative,
whichever the Company shall elect.
(d) Notwithstanding anything to the contrary in this
Agreement, the Company may from time to time designate one or
more customers as national accounts or house accounts, and no
commissions shall be payable under this Agreement on products for
which the Company receives orders more than ten (10) days after
it has given written notice of such designation to the
Independent Sales Representative.
6. Orders. All orders solicited or obtained by the
Independent Sales Representative are subject to approval and acceptance
by the Company at its offices in Dallas County, Texas. The Independent
Sales Representative is not authorized and shall not purport to accept
any orders for the Company's products. The Company shall have the
right, in its sole discretion, to accept or reject each order for its
products; to determine whether and when to ship any products; to grant
or refuse credit to any customer and to determine the terms thereof; to
accept or reject any customer's request or attempt to return any
products; to grant any allowances, discounts or adjustments; and to
change the prices it charges its distributors for the products listed
on Schedule A hereto (provided that the Company shall give the
Independent Sales Representative written notice of any such price
change not less than sixty (60) days before such change becomes
effective).
7. Duties of the Company. The Company shall use its
reasonable best efforts to maintain a sufficient inventory of the
products listed on Schedule A to enable it to ship the products ordered
by customers in the Sole Area of Responsibility on a reasonably prompt
basis.
8. Status of Independent Sales Representative and Its
Personnel. The Independent Sales Representative is and shall at all
times remain an independent contractor, and nothing in this Agreement
is intended or shall be construed to constitute the Independent Sales
Representative an employee, agent or partner of the Company. As an
independent contractor, the Independent Sales Representative shall be
entitled to employ such personnel as it shall desire, on such terms as
it shall deem appropriate, and to utilize such personnel in carrying
out its obligations under this Agreement. Such personnel shall at all
times and for all purposes constitute employees or agents of the
Independent Sales Representative, and nothing in this Agreement is
intended or shall be construed to constitute such personnel employees
or agents of the Company.
9. FDA Compliance
Independent Sales Representative and its employees agrees
to strictly comply with all applicable rules and regulations of the
Federal Food and Drug Administration (FDA) and all other applicable
laws, rules and regulations, including but not limited to FDA
requirements relating to the sale of 510(k) regulated products.
10. Compliance by Third Parties
Independent Sales Representative agrees to take all steps
reasonably necessary to ensure that its representatives comply with all
applicable rules and regulations of the FDA and all other applicable
laws, rules and regulations, including but not limited to FDA
requirements relating to the sale of 510(k) regulated products.
11. Competitive Products
Independent Sales Representative agrees to refrain from
marketing competitive products during the term of this Agreement.
12. Confidentiality
Independent Sales Representative and any employees or
agents thereof shall hold in trust and strictest confidence for
Xxxxxxxxxx all Xxxxxxxxxx Confidential Information and shall not
disclose to any person or use such information for any purpose other
than in connection with the performance of Independent Sales
Representative duties and responsibilities during the term of this
Agreement. Confidential Information shall mean, but not limited to,
prices, sales, customer or distribution information or lists as well as
any related product planning or research information.
The provisions of this Agreement shall survive and continue
after expiration or termination of this Agreement and any and all
Confidential Information and copies thereof shall be promptly returned
to Company upon its request. Independent Sales Representative shall
certify to Company that it and all its employees have returned all
Confidential Information and copies thereof.
13. Notices. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed to have been given
when delivered in person or when mailed by certified or registered
United States mail, postage paid, addressed to the appropriate party at
the address shown for such party below:
If to the Company, to:
President
Xxxxxxxxxx Laboratories, Inc.
X.X. Xxx 000000
Xxxxxx, XX 00000-0000
If to the Independent Sales Representative, to:
Xxxx Xxxxxx
Xxxxxx Medical Sales Associates
0000 Xxxxxx Xxx
Xxxxxx, Xxxxx 00000
Either party may change its address for notices hereunder by giving
notice of such change to the other party in the manner set forth above.
14. Waiver. No delay on the part of either party in exercising
any right, power or remedy which it may have in connection herewith
shall operate as a waiver thereof, nor shall any waiver thereof or any
single or partial exercise thereof preclude any further exercise
thereof or the exercise of any other right, power or remedy. No waiver
of any provision of this Agreement, and no consent to any departure
therefrom, shall be effective unless such waiver or consent is in
writing and signed by the party against whom it is sought to be
enforced, and no such waiver or consent shall be effective except with
respect to the particular case and purpose for which it is given.
15. Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Texas.
16. Entirety and Modification. This Agreement contains the
entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes any and all prior agreements, whether
written or oral, between such parties relating to such subject matter.
No modification, alteration, amendment or supplement to this Agreement
shall be valid or effective unless the same is in writing and signed by
the party against whom it is sought to be enforced.
17. Severability. If any provision of this Agreement is held
to be unenforceable, (a) this Agreement shall be considered divisible,
(b) such provision shall be deemed inoperative to the extent it is
unenforceable, and (c) in all other respects this Agreement shall
remain in full force and effect; provided, however, that if any such
provision may be made enforceable by limitation thereof, then such
provision shall be deemed to be so limited and shall be enforceable to
the maximum extent permitted by applicable law.
18. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
permitted successors and assigns; provided, however, that neither of
the parties shall, without the consent of the other, assign or transfer
this agreement or any interest herein, and any such assignment or
transfer attempted without the consent of the other party hereto shall
be void and of no effect whatsoever. Notwithstanding the foregoing, in
the event of a merger, consolidation or transfer or sale of all or
substantially all of the assets of the Company, this Agreement may be
transferred to the successor to the Company's business and assets
without the consent of the Independent Sales Representative.
19. Captions. The captions of the various sections of this
Agreement have been inserted for convenient reference only and shall
not be construed to enlarge, diminish or otherwise change the express
provisions hereof.
20. Gender. Words of any gender used in this Agreement shall
be construed to include each gender.
21. Counterparts. This Agreement may be signed in
counterparts, each of which shall be deemed an original and all of
which shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
XXXXXXXXXX LABORATORIES, INC.
By:__________________________
Xxxxxxx X. Xxxxxx, Ph.D.
President and CEO
By:___________________________
Name:_________________________
Title:________________________
SCHEDULE A
COMMISSIONS
Xxxxxxxxxx Wound Gel 3 oz. 20%
Xxxxxxxxxx Wound Gel 1/2 oz. 20%
Xxxx-Xxxxx 16 oz. 20%
Xxxx-Xxxxx 6 oz. 20%
Xxxxxxxxxx Moisture Barrier 20%
Xxxxxxxxxx Incontinence Skin Care Kit 20%
Xxxxxxxxxx Foot Cream 20%
Xxxxxxxxxx Odor Eliminator 1 oz. 20%
Xxxxxxxxxx Odor Eliminator 8 oz. 20%
Xxxxxxxxxx Whirlpool Solution 20%
Perineal Cleansing Foam 8 oz. 20%
Aloe Skin Balm 20%
Commissions are paid on Distributor pricing. Commission program can be
changed without notice.
