EX-10.20
INDEPENDENT SALES & MARKETING CONTRACTOR AGREEMENT
THIS AGREEMENT ("Agreement") is made and effective on June 16, 2001,
by and between Platforms Wireless International Corporation, an
Oklahoma Corporation ("Company") and Mr. Xxxx Xxxx ("Independent
Sales & Marketing Contractor"). Mr. Xxxx Xxxx will be referred to as
the Representative from this point forward in this document. Both the
Company and Mr. Xxxx Xxxx agree that Xx. Xxxx is in fact an
Independent Sales & Marketing Contractor. .
NOW THEREFORE, in consideration of the mutual promises contained
herein, the parties agree as follows:
1. Definitions.
As used herein, the following terms shall have the meanings set forth
below:
A. "Products" shall mean the Company products to be sold by
Representative:
The Platforms Airborne Relay Communications It "ARC" System.
B. "Territory" shall mean the following described geographic area
and/or particular accounts:
Nonexclusive rights in the United States of America and Mexico;
exclusive rights to the ASEAN region {Association of the South East
Asian Nations). The ASEAN region is comprised of Brunel Darussaiam,
Thailand, Vietnam, Myanmar (Burma), Laos, Cambodia, Indonesia,
Malaysia, Singapore, and the Philippines.
Non exclusive rights shall mean Representative has the right to make
sales and collect commission on sales Representative makes only, on a
split basis with the exclusive representative,
Exclusive rights shall mean Representative shall have the right to
collect commissions on all sales made by anyone, and on a split basis
on sales made by non- exclusive sales representative.
2. Appointment.
Company hereby appoints Representative as its Independent Sales &
Marketing Contractor for its Products in the Territory described
above, and Representative hereby accepts such appointment.
Representative's sole authority shall be to solicit orders and
recommend business combinations for the Product 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
Company.
3. General Duties.
Representative shall use its best efforts to promote the Product and
maximize the sale of the Product in the Territory. Representative
shall also provide reasonable assistance to Company in promotional
activities in the Territory such as trade shows, product
presentations, sales calls and other activities of Company with
respect to the Product. Representative shall also provide "after
sale" support to Product purchasers and generally perform such sales
related activities as are reasonable to promote the Products and the
goodwill of Company in the Territory. Representative shall report
weekly to Company concerning sales of the Products and competitive
promotional and pricing activities. Representative will devote the
required time and effort to perform his obligations. Representative
shall neither advertise the Product outside the Territory nor solicit
sales from purchasers located outside the Territory without the prior
written authorization of the Company.
4. Reserved Rights.
Company reserves the right to solicit orders directly from and sell
directly to any end users or other retail buyers within the Territory
Representative's task is to solicit orders from all potential
customers in the Territory.
5. Conflict of Interest.
Representative warrants to Company that he does not currently
represent or promote any lines or products that compete with the
Products. During the term of this Agreement, Representative shall not
represent, promote or otherwise try to sell any lines or products
that, in Company's judgment, complete with the Products covered by
this Agreement. Representative shall provide Company with a list of
the companies and products that he currently represents and shall
notify Company in writing of any new companies and products at such
time as his promotion of those new companies and products commence.
6. Independent Contractor.
Representative is an independent contractor, and nothing contained in
this Agreement shall be construed to (i) give either party the power
to direct and control the day-to-day activities of the other, (ii)
constitute the parties as partners, joint venturers, co-owners or
otherwise, or (iii) allow Representative to create or assume any
obligation on behalf of Company for any purpose whatsoever.
Representative is not an employee of Company and is not entitled to
any employee benefits. Representative shall be responsible for paying
an income taxes and other taxes charged to Representative on amounts
earned hereunder. All financial and other obligations associated with
Representative's business are the sole responsibility of Representative.
7. Indemnification.
A. Indemnification by Representative. Representative shall
indemnify and hold Company free and harmless from any and all claims,
damages or lawsuits (including reasonable attorneys' fees) arising
out of negligence or malfeasant acts of Representative, its employees
or its agents.
B. Company shall indemnify and hold Representative free and harmless
from any and all claims, damages or lawsuits (including reasonable
attorneys' fees) arising out of defects in the Products caused by
Company or failure of Company to provide any products to a customer,
which has properly been ordered through Representative.
8. Commission.
A. Sole Compensation. Representative's sole compensation under the
terms of this Agreement shall be a commission computed as follows:
five percent (5%) of net sales, as defined by the American Institute
of Certified Public Accountants, for the first ten (10) ARC Systems
sold. The commission shall be paid sixty percent (60%) in cash and
forty percent (40%) in restricted common stock of the Company valued
as if free trading. Further, the stock will be valued at the date of
the signing of the contract for the ARC System. The commission for
the eleventh system and beyond shall be three percent (3%) of net
sales as defined by the American Institute of Certified Public
Accountants, payable in the same fashion
The cash commission shall be paid immediately upon receipt of payment
from the customer on a pro-rata basis. At the Representative's
option any part of the cash commission may be taken in common stock
of the Company valued at three (3) shares per dollar. These shares
shall be restricted.
B. Base of Commission. The Commission shall apply to an orders
solicited by Representative from the Territory where Representative
has exclusive rights. A. Commission shall also apply at the rate that
would apply to those orders over ten to all order solicited by anyone
from the territory which Representative has exclusive rights and the
order bas been accepted by Company and for which shipment has
occurred. Commissions for orders from non-exclusive Territory shall
be negotiated on a sale-by-sale basis. Commissions will be separately
negotiated on any equity or debt capital Representative might raise
on behalf of the company.
C. Time of Payment. Shall be as described in Item A above.
D. Commission Charge-Back. Company shall have the right to set forth
cash 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
Company shall charge back to Representative's account any amounts
previously paid or credited to him with respect to such cash
discounts, allowances, adjustments, returns, or bad debts.
E. Monthly Statements. Company shall submit to Representative
monthly statements of commission due and payable to Representative
under the terms of this Agreement, with reference to the specific
invoices on which the commissions are being paid.
9. Sale of the Products.
A. Prices and Terms of Sale. Company shall provide Representative
with copies of its current price lists, its delivery schedules, and
its standard terms and conditions of sale, as established from time
to time. Representative shall quote to customers only those
authorized prices, delivery schedules, and terms and conditions, and
modify, add to or discontinue Products following written notice to
Representative. Each order shall be governed by the prices, delivery
schedules and terms and conditions in effect at the time the order is
accepted, and all quotations by Representatives shall contain a
statement to that effect. The Company reserves the right to modify
products, product prices, and terms and conditions without notice.
B. Quotations. Representatives shall promptly furnish to Company
copies of all quotations submitted to customers. Each quotation shall
accurately reflect the terms of this Agreement.
C. Orders. All orders for the Products shall be in writing, and the
originals shall be submitted to Company. Company shall promptly
furnish to Representative informational copies of all commissionable
orders obtained from customers in the Territory.
D. Acceptance. All orders obtained by Representative shall be
subject to acceptance by Company at its principal office and all
quotations by Representatives shall contain a statement to that
effect. Representative shall have no authority to make any acceptance
or delivery commitments to customers. Company specifically reserves
the right to reject any order or any part thereof for any reason.
Company shall send copies to Representative of any written
acceptances on commissionable orders.
E. Credit Approval. Company shall have the sole right of credit
approval or credit refusal for customers in all cases.
F. Invoices. Company shall render all invoices directly to the
customers and shall send copies of all commissionable invoices to
Representative. Payments shall be made directly to Company.
G. Collection. Full responsibility for collection from customers
rests with Company, provided that Representative shall at Company's
request assist in such collection efforts.
H. Inquiries from Outside the Territory. Representative shall
promptly submit to Company, for Company's attention and handling, the
originals of all inquiries received by Representative from customers
outside the Territory.
10. Product Warranty and Product Availability.
A. Product Warranty. Any warranty for the Products shall run
directly from Company to the qualified end-user of the Products and
pursuant to the warranty the qualified end-user shall return any
allegedly defective Products to Company. Representative shall have no
authority to accept any returned Products.
B. Product Availability. Under no circumstances shall Company be
responsible to Representative or anyone else for its failure to fill
accepted orders, or for its delay in filling accepted orders, when
such failure or delay is due to strike, accident, labor trouble, acts
of nature, freight embargo, war, civil disturbance, vendor problems
or any cause beyond Company's reasonable control.
11. Samples and Demonstration Units.
Company is not obligated to provide any free demonstration units or
samples of the Product. Representative shall obtain any such samples
or demonstrators at Representative's discretion by purchase from the
Company.
12. Additional Responsibilities of Representative.
A. Forecast. Not later than the fifteenth (l5th) day of every
month, Representative shall provide company with a ninety (90) day
rolling forecast of orders showing each prospective sale by potential
customer, Product model, intended close date, and probability of success.
B. Expense of Doing Business. Representative shall bear the entire
cost and expense of conducting its business in accordance with the
terms of this Agreement.
C. Facilities. Representative shall provide itself with, and be
solely responsible for, (i) such facilities, employees, and business
organization, and (ii) such permits, licenses, and other forms of
clearance from governmental or regulatory agencies, if any, as are
necessary for the conduct of Representative's business operations in
accordance with this Agreement.
D. Promotion of the Products. Representative shall, at its own
expense, vigorously promote the sale of and stimulate demand for the
Products within the Territory by direct solicitation. In no event
shall Representative make any representation, guarantee or warranty
concerning the Products except as expressly authorized by Company.
E. Customer Service. Representative shall diligently assist
customers' personnel in using the Products and shall perform such
additional customer services as good salesmanship requires and as
Company may reasonably request.
F. Advising of Changes. Representative shall promptly advise
Company of (i) any changes in Representative's status, organization,
personnel. and similar matters, (ii) any changes in the key
personnel, organization, and status of any major customers of Company
in the Territory, and (iii) any political, financial, legislative,
industrial or other events in the Territory that could affect the
mutual business interests of Representative and Company, whether
harmful or beneficial.
G. Books and Records. Representative shall maintain and make
available to Company accurate books, records, and accounts relating
to the business of Representative with respect to the Products.
Representative shall also maintain a record of any customer
complaints regarding either the Products or Company and immediately
forward to Company the information regarding those complaints.
13. Additional Obligation of Company.
A. Assistance in Promotion. Company shall, at its own expense,
promptly provide Representative with marketing and technical
information concerning the Products, brochures, instructional
material, advertising literature, and other Product data.
B. Assistance in Technical Problems. Company shall, at its own
expense, assist Representative and customers of the Products in all
ways deemed reasonable by Company in the solution of any technical
problems relating to the functioning and use of the Products.
C. New Developments. Company shall inform Representative of new
product developments that are competitive with the Products and other
market information and competitive information as discovered from
time to time.
14. Trademarks and Tradenames.
A. Use. During the term of this Agreement, Representative shall have
the right to indicate to the public that it is an authorized
representative of Company's Products and to advertise (within the
Territory) such Products under the trademarks, marks, and trade names
that Company may adopt from time to time ("Company's Trademarks").
Nothing herein shall grant Representative any right, title, or
interest in Company's Trademarks. At no time during or after the term
of this Agreement shall Representative challenge or assist others to
challenge Company's Trademarks or the registration thereof or attempt
to register any trademarks. marks or trade names confusingly similar
to those of Company. Company indemnifies its Representative for all
use of Company's Trademarks.
B. Approval of Representations. All presentations of Company's
Trademarks that Representative intends to use shall first be
submitted to Company for approval (which shall not be unreasonably
withheld) of design, color, and other details or shall be exact
copies of those used by Company.
15. Term and Termination.
A. Term. This Agreement shall commence on June 16, 2001 and continue
until June 16, 2002. During this twelve (12) month period, if a
valid "letter of intent" to purchase an ARC System or a "contract" to
purchase an ARC System is received from a customer) that
Representative qualifies to receive a commission from, the term of
this contract will be extended for one year. Subsequently, unless, on
an annual basis, representative generates a minimum of one ARC System
sale per calendar quarter, on a cumulated credit basis, the contract
will not be further extended.
B. Termination for Cause. If either party defaults in the
performance of any material obligation in this Agreement, then the
non-defaulting party may give written notice to the defaulting party
and if the default is not cured within thirty (30) days following
such notice, the Agreement will be terminated.
C. Termination for Insolvency. This Agreement shall terminate,
without notice, (i) upon the institution by or against Representative
of insolvency, receivership or bankruptcy proceedings or any other
proceedings fur the settlement of Representative's debts, (ii) upon
Representative's making an assignment for the benefit of creditors,
or (iii) upon initiation of dissolution proceedings of the Representative.
D. Additional Commissions. In addition to any commissions already
earned by Representative but not yet paid by Company under the terms
herein, Company shall pay commissions to Representative on all orders
from the Territory (i) that were solicited by Representative, (ii)
that were accepted by Company within thirty (30) days after the date
of receipt of the order by Company, and (iii) for which Company
receives payments within sixty (60) days after the date of
termination of this Agreement ("Additional Commissions"). The
payment of such Additional Commissions shall only be applicable,
however, if Representative has complied in a timely manner with the
provisions of subsection E. below. The schedule and basis for
Additional Commissions shall be as set forth in Section 8 above. No
Additional Commissions shall be earned by Representative or paid by
Company until payment for the order on which the Additional
Commission is based, is received by Company. Additional Commissions
shall be earned pro rata on partial payments received on order
solicited by Representative.
E. Return of Materials. All of Company's trademarks, trade names,
patents, copyrights, designs, drawings. formulas or other data
photographs, demonstrators, literature, and sales aids of every kind
shall remain the property of Company. Within ten (10) days after the
termination of this Agreement. Representative shall return all such
items to company at Representative's expense. Representative shall
not make or retain any copies of any confidential items or
information that may have been entrusted to it. Effective upon the
termination of this Agreement, Representative shall cease to use all
trademarks, marks and trade name of Company.
16. Limitation of Liabilities.
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 the termination for compensation, reimbursement or
damages on account of the loss of prospective profits or anticipated
sales or on account of expenditures, investments, leases or
commitments in connection with the business or goodwill of Company or
Representative. Company's sole liability under the terms of this
Agreement shall be for any unpaid commissions under Section 8 and
Section 15.
17. Confidentiality.
Representative acknowledges that by reason of its relationship with
the Company hereunder it will have access to certain information and
materials concerning Company's business plans, customers, technology,
and products which are confidential and of substantial value to
Company, which value would be impaired if such information were
disclosed to unauthorized third parties. Representative agrees that
it shall not use in any way for its own account of the account of any
third party, nor disclose to any third party, any such confidential
information revealed to it by Company. Company shall advise
Representative whether or not it considers any particular information
or materials to be confidential. Representative shall not publish any
technical description of the Products beyond the description
published by Company. In the event of termination of this Agreement,
there shall be no use or disclosure by Representative of any
confidential information of Company, and Representative shall not
manufacture or have manufactured any devices, components or
assemblies utilizing Company's patents, inventions, copyrights, know-
how or trade secrets.
18. Governing Law, Arbitration and Legal Fees.
A. This Agreement shall be governed by and construed according to the
laws of the State of California.
B. The parties agree that they will use their best efforts to
amicably resolve any dispute arising out of or relating to this
Agreement. Any dispute that cannot be resolved amicably shall be
settled by final binding arbitration in accordance with the rules of
the American Arbitration Association and judgment upon the award
rendered by the arbitrator or arbitrators may be entered in any court
having jurisdiction thereof Any such arbitration shall be conducted
in Los Angeles, California, or such other place as may be mutually
agreed upon by the parties. Within fifteen (15) days after the
commencement of the arbitration, each party shall select one person
to act as arbitrator, and the two arbitrators so selected shall
select a third arbitrator within ten (10) days of their appointment.
Each party shall bear its own costs and expenses and an equal share
of the arbitrator's expenses and administrative fees of arbitration.
C. The prevailing party in any legal action brought by one party
against the other and arising out of this Agreement shall be
entitled, in addition to any other rights and remedies it may have,
to reimbursement for its expenses, including court costs and
reasonable attorneys' fees.
19. Entire Agreement.
This Agreement sets forth the entire agreement and understanding of
the parties relating to the subject matter herein and supersedes any
prior discussions or agreements between them. No modification of or
to this Agreement, nor any waiver of any rights under this Agreement,
shall be effective unless in writing signed by the party to be charged.
20. Notices.
Any notices required or permitted by this Agreement shall be deemed
given if sent by certified mail, postage prepaid, return receipt
requested or by recognized overnight delivery service:
If to Company;
Platforms Wireless International Corporation
0000 X. Xxxxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, Xx 00000
If to Sales Representative:
Mr. Xxxx Xxxx
000 Xxxxxx Xxxxx
Xx. Xxxx, Xxxxx Xxxxxxxx 00000
21. Non-Assignability and Binding Effect.
A mutually agreed consideration for the Company to enter into this
Agreement is the reputation, business standing, and goodwill already
honored and enjoyed by Representative under its present ownership,
and, accordingly, Representative agrees that its rights and
obligations under this Agreement may not be transferred or assigned
directly or indirectly. Subject to the foregoing, this Agreement
shall be binding upon and inure to the benefit of the parties hereto,
their successors and assigns.
22. Severability.
If any provision of this Agreement is held to be invalid by a court
of competent jurisdiction, then the remaining provisions shall
nevertheless remain in fun force and effect.
23. Headings.
Headings used in this Agreement are provided for convenience only and
shall not be used to construe meaning or intent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
Platforms International Corporation
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Chief Executive Officer
/s/ Xxxx Xxxx
Xxxx Xxxx
