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EXHIBIT 10.31
MANUFACTURER'S SALES REPRESENTATIVE AGREEMENT
This Agreement is dated as of December 8, 1994 between SCM
Microsystems, Inc., with an office located at 000 Xxxxxxxx Xxx, Xxx Xxxxx, XX
00000 (hereinafter called the "Manufacturer"), and the undersigned, AGM, with
an office located at 00000 Xxxxx Xxx Xxxxx, Xxxxx Xxxxxxx, XX 00000
(hereinafter called the "Representative").
NOW, THEREFORE, in consideration of the mutual agreements of the
parties hereto, Manufacturer and Representative agree as follows:
1. Appointment and Territory.
Subject to the terms and conditions hereafter set forth, Manufacturer
hereby appoints and grants to Representative the exclusive and nonassignable
right to sell all products of Manufacturer described in Exhibit A hereto
(hereinafter called the "Products") in the geographic territory described in
Exhibit A hereto (hereinafter called the "Territory") and Representative hereby
accepts such appointment.
2. Obligations of Representative and Manufacturer.
A. As Manufacturer's exclusive sales representative for the
Products in the Territory, Representative shall:
1. Actively and fully promote the Products, identify
potential customers in the Territory and exploit, expand and cover existing and
potential customers in the Territory on a regular basis, consistent with good
business practice, and bear all costs and expenses incurred by Representative
in connection therewith;
2. Cooperate with and assist Manufacturer in all
advertising and merchandising campaigns initiated by Manufacturer with respect
to the Products; provided, however, that the costs and expenses of such
campaigns initiated by Manufacturer shall be borne by Manufacturer;
3. Employ such sales personnel on such compensation
terms (payable by Representative) and on such other terms and conditions as
Representative may deem appropriate to market and sell the Products in the
Territory and otherwise carry out its obligations under this Agreement;
provided, however, Representative, in so employing such sales personnel, shall
act individually and not as an agent for Manufacturer, and such sales personnel
shall for all purposes be employees of Representative and not Manufacturer;
4. When requested by Manufacturer, travel to the main
office of Manufacturer in Los Gatos, California, or any other location deemed
appropriate by Manufacturer to report to and consult with Manufacturer and to
acquaint itself with the Products and all phases of Manufacturer's sales and
manufacturing capabilities; and
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5. Immediately notify Manufacturer in the event
Manufacturer introduces a new Product that may be competitive with other
products that Representative markets or sells for other manufacturers.
B. Manufacturer shall assist Representative with Representative's
performance of its obligations under this Agreement by:
1. Furnishing Representative, without charge, reasonable
amounts of promotional sales and technical information and other literature and
brochures representing the Products, and, with respect to new Products,
endeavoring to provide such information in advance of initial production or
sale of such Products;
2. Providing reasonable sales and service assistance;
3. Furnishing Representative with current price lists
and schedules; and
4. Endeavoring to keep Representative fully informed of
all changes in the Products.
3. Commissions; Collection of Accounts.
A. Manufacturer shall pay Representative commissions on sales
made to Representative's customers in the Territory in accordance with the
Commission Schedule set forth on Exhibit A hereto. Direct customers of
Manufacturer which are identified on Exhibit A hereto as being a "House
Account" shall under no circumstances be deemed customer of Representative for
purposes of this Agreement notwithstanding that such "House Account" customers
may be located in the Territory. Representative's commission shall be computed
on the net invoice price (i.e., the gross price less customary charges for such
items a taxes, freight and trade discounts) of the Products as billed to
Representative's customers by Manufacturer and shall be payable by
Manufacturer. Commission amounts will be paid to the Representative after the
customer's invoice has been paid.
B. Manufacturer shall provide Representative with copies of all
invoices sent to Representative's customers in the Territory. All Products for
which sales orders are accepted by Manufacturer shall be billed and shipped
directly to Representative's customers by Manufacturer and all payments by such
customers shall be made directly to Manufacturer. Manufacturer shall be
responsible for all collections from Representative's customers and, unless
otherwise agreed by Manufacturer and Representative in writing, Representative
shall have no authority to make any such collections; provided, however, upon
request by Manufacturer, Representative shall assist Manufacturer in collecting
overdue accounts. Manufacturer has the sole authority and discretion to
collect, compromise and settle the accounts of all customers of Representative.
Nevertheless, Manufacturer shall exercise reasonable diligence to collect the
full invoice amount for all Products sold by Representative to its customers in
the Territory.
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4. Commission Charge-Back
Manufacturer shall have the right to charge back to Representative's
commission account:
A. In the event of any refund or credit to the account of any
customer of Representative because of rejection or return by such customer of
any Products, the amount which represents the commission previously paid to
Representative or credited to Representative's commission account in respect of
such refunded or credited amount;
B. In the event final settlement of an account of a customer of
Representative is made on less than a full payment basis or in the event an
account of any such customer is charged off in whole or in part by
Manufacturer, the amount which represents the commission previously paid to
Representative or credited to Representative's commission account in respect of
the uncollected portion of such customer's account resulting from such final
settlement or charge-off; and
C. In the event Representative assumes responsibility for an
existing account which was previously the responsibility of another sales
representative of Manufacturer or which previously was a House Account, all
commission charge-backs of the nature described in Clauses 4A an B above made
on or after 60 days after Representative assumes responsibility for such
account notwithstanding that Representative may not have earned any commissions
with respect to such account at the time of such charge-back.
5. Prices and Terms.
Representative shall conduct its business as an independent sales
representative and shall have no authority to bind Manufacturer. All sales
orders, including, without limitation, the prices and terms thereof, shall be
subject to the final approval of and acceptance by Manufacturer.
Representative acknowledges that the price lists and schedules for the Products
and the prices and terms of all sales orders constitute confidential
information of Manufacturer, and Representative shall not disclose any of such
information to any other person except as may be necessary to enable
Representative to perform its obligations under this Agreement.
6. Termination.
A. This Agreement shall be effective as of the date first written
above and may be terminated at any time by either party hereto upon thirty (30)
days' prior written notice to the other party at the address for such party set
forth in the opening paragraph of this Agreement, or such other address as such
party shall designate in writing to the other party. Each notice under this
Agreement shall be sent certified U.S. mail, return receipt requested, postage
prepaid and shall be effective upon the earlier of receipt or three (3) days
after the mailing thereof.
B. Representative shall be entitled to a commission in accordance
with the provisions of this Agreement on all sales orders which are transmitted
to and accepted by Manufacturer prior to the effective date of termination of
the Agreement; provided, however, that under no circumstances shall
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Representative be entitled to commissions on any shipments made by Manufacturer
with respect to such sale orders more than thirty (30) days after the effective
date of termination of this Agreement.
7. Indemnification.
A. Manufacturer shall have sole responsibility for the design,
development, and performance of the Products and the protection of its trade
name.
B. Manufacturer agrees to indemnify and hold Representative
harmless from, and to pay all losses, costs, or expenses which Representative
may have to incur on account of, any infringement of patents, trademarks, trade
names or copyrights resulting from sales of the Products.
8. Entire Agreement.
This Agreement supersedes all prior agreements between the parties
hereto relating to the subject matter hereof and all such prior agreements are
declared to be null and void and without further force or effect. This
Agreement constitutes the entire agreement between Manufacturer and
Representative and there are no oral or other agreements, arrangements,
representations, or understandings between Manufacturer or Representative.
This Agreement may not be amended or modified except by an instrument in
writing duly signed by both parties hereto.
9. Miscellaneous.
This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
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In WITNESS WHEREOF, Representative has hereunto affixed his/her
signature and an authorized officer of Manufacturer has hereunto affixed
his/her signature, both as of the day and year first above written.
MANUFACTURER:
SCM MICROSYSTEMS, INC.
s/signature By: s/Xxxxxxx Xxxxxx
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Witness Name: Xxxxxxx Xxxxxx
Title: Vice President of Sales
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REPRESENTATIVE:
s/signature AGM
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Witness Name: s/signature
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EXHIBIT A
A. The Products
All SCM Microsystems Brand Products
B. The Territory: State Zip-Code
DC 20000-20500
DE 19700-19900
MD 20600-21900
NJ 08000-08700
PA 16800-19600
VA 22000-24500
C. The Commission Schedule:
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* CERTAIN CONFIDENTIAL INFORMATION ON THIS
PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
