SALES REPRESENTATIVE EMPLOYMENT AGREEMENT
Exhibit
10.16
THIS
AGREEMENT is made and entered into as of the 27th day of May, 2005, by and
between HISS , a Florida corporation ("HISS"), and Xxxxx Xxxxxxx a resident
of
the State of Virginia residing at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000.
R E C I T A L S:
X. XXXX
designs and/or manufactures security system software and products, including
Cyber Tracker, Radiation Detection equipment, and cellular phones.
B. Representative
represents that it is familiar with the market for HISS's products and wishes
to
act as a sales representative for HISS's Products (as defined below) in the
Territory (as defined below).
NOW,
THEREFORE, in consideration of the mutual promises and mutual covenants
exchanged, the parties hereby agree as follows:
As
used
herein:
1.1 "Products"
shall
mean those standard HISS products, systems and accessories and related products
offered by HISS for sale in the Territory which are listed in Exhibit A
attached hereto, as the same may be amended or modified from time to time by
HISS in its sole discretion.
1.2 "Territory"
shall
mean the geographical area, specified prospects/customers or areas described
in
Exhibit B attached hereto, as the same may be amended or modified from time
to time by duly authorized representatives of the parties hereto in
writing.
1.3 "Net
Xxxxxxxx"
shall
mean all amounts invoiced in respect to the sale of Products actually shipped
to
a customer, less actual discounts, credits, refunds and allowances made,
freight, transportation, C.O.D., insurance and similar charges, manufacturer's
warranty charges, and any applicable sales, use or other similar
taxes.
1.4 "Bookings"
shall
mean orders from customers that have been received, acknowledged and accepted
by
HISS and scheduled for shipment to the customer.
1.5 "Commissions"
shall
mean Representative's compen-sation for performance of its duties hereunder
at
the rates set forth in Exhibit A attached hereto, as the same may be
amended or modified from time to time by HISS in its sole discretion by giving
at least thirty (30) days’ prior written notice to Representative before such
change becomes effective. The new commission rates shall apply to all orders
received or dated after the effective date of such notification.
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1.6 "House
Accounts"
shall
mean those customers for or purchasers of HISS Products which are located within
the Territory and which are designated from time to time in writing by HISS
as
House Accounts. House Accounts designated by HISS at the time of execution
of
this Agreement are set forth in Exhibit B attached hereto. HISS may in its
sole discretion designate other customers as House Accounts by giving
Representative at least ten (10) days prior written notice of such designation
before such designation becomes effective.
1.7 "Regular
Accounts"
shall
mean those customers for or purchasers of HISS Products which are not defined
in
Section 1.6 above and shall be serviced by the Representative.
1.8 "Industrial
Distributor"
shall
mean those persons, firms or organizations purchasing HISS Products for resale
to customers in the Territory (excluding House Accounts) in accordance with
distributorship agreements entered into from time to time with
HISS.
1.9 "Confidential
Information"
shall
mean all informa-tion made available by HISS to Representative, its agents
or
employees, in connection with this Agreement which HISS protects against
unrestricted disclosure to others and which: (i) if in written or other
tangible form, is clearly designated as "Confidential"; or (ii) if
disclosed orally, is designated as "Confidential" in a written memorandum
delivered by HISS promptly following such oral disclosure. By way of
illustration, but no limitation, Confidential Information may include
proprietary technical data and concepts, vendor and customer information,
financial information and marketing data.
2. Sales
Agency Arrangement.
2.1 Appointment. HISS
hereby appoints Representative as HISS's non-exclusive sales representative
to
solicit orders for Products in the Territory, and Representative hereby accepts
such appointment, subject to the terms and conditions of this Agreement.
Notwithstanding the foregoing, HISS reserves the right during the term of this
Agreement to sell Products directly to House Accounts without paying Commissions
to Representative.
2.2 Solicitation
of Orders.
(a) Representative
agrees to use its diligent and best efforts to solicit orders and promote sales
of Products in the Territory and to devote such time and effort to such
activities as is reasonably necessary to provide coverage for existing and
potential accounts within the Territory on a regular basis, consistent with
good
business practices.
(b) Representative
shall solicit orders for Products at such prices, and on such other terms and
conditions, as may be established by HISS from time to time. All quotations
for
Products must be made on HISS's standard quotation forms and be based upon
HISS's published prices and standard terms and conditions as then in effect,
unless deviations there from have been approved in advance by HISS. No quotation
will be valid for a period of more than thirty (30) days unless otherwise
approved in advance by HISS. Representative will provide to HISS copies of
all
quotations and correspondence with customers and potential
customers.
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(c) All
Purchase Orders solicited by Representative are subject to written acceptance
by
an officer or other authorized employee of HISS, and no Purchase Order shall
be
binding upon HISS until so accepted. All orders will be accepted only in
accordance with HISS's Standard Terms and Conditions of Sale. HISS reserves
the
right to alter or amend its Standard Terms and Conditions of Sale at any time
and such revised Standard Terms and Conditions of Sale shall be used for all
sales after the effective date of such revisions. Representative agrees that
it
shall have no authority to accept any order, assume, create or modify any
agreement or obligation or authorize any allowance, adjustment or return of
Products on behalf of HISS and shall so advise all customers and potential
customers with whom it deals.
(d) HISS
shall have the right to change its standard price list at any time and from
time
to time during the term of this Agreement, provided that HISS shall give
Representative thirty (30) days' advance notice of any such price change. No
price change shall be effective for Products covered by a Purchase Order
accepted by HISS prior to the effective date of such price change. The price
of
all Products shall include the cost of standard packaging in accordance with
HISS's standard commercial practices. All freight, insurance, shipping and
non-standard packaging expense shall be borne by and invoiced to the customer
unless otherwise specified in HISS’s quotation.
(e) All
invoices in connection with Purchase Orders solicited by Representative shall
be
rendered by HISS, directly to the customer, with a copy thereof to be forwarded
to Representative, in accordance with HISS's established invoicing practices.
Responsibility for all collections shall rest with HISS; provided, however,
that
HISS does not warrant the collectibility of any invoice. Representative agrees,
upon HISS's request, to assist HISS in effecting the collection of receivables
from customers solicited by Representative.
2.3 Other
Duties of Representative.
During
the term of this Agreement, Representative agrees as follows:
(a) Representative
shall maintain at least one office in the Territory which shall be continually
open and adequately staffed during normal business hours. Representative shall
employ an adequate number of qualified sales personnel, at such compensation
and
on such other conditions as Representative may deem appropriate, in order to
enable Representative to discharge its duties hereunder;
(b) Upon
request of HISS, Representative agrees to undertake, at Representative's
expense, those administrative functions HISS deems reasonably required for
proper management of the sales activity, including, but not limited
to:
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(i) Attendance
of sales personnel at Regional Sales Conferences
for the region in which the Territory is located and
at
National Sales Conferences.
(ii) Submission
of rolling three-month forecasts of bookings and xxxxxxxx
forecasts to HISS every month.
(iii) Submission
of annual sales forecasts.
(iv) Submission
of customer contact reports on a regular basis.
(c) Representative
shall obtain, and regularly report to HISS, information concerning existing
and
potential markets for existing Products, as well as customer interest in
potential new or modified Products within HISS's field of
operations;
(d) Representative
shall cooperate with and assist HISS in implementing such promotional and
merchandising campaigns as HISS may from time to time undertake;
(e) Representative
shall regularly report to HISS regarding activities of HISS's competitors of
which Representative becomes aware during the course of Representative's
services hereunder;
(f) Representative
shall properly store and maintain all Products and other property of HISS which
may be supplied to Representative on consignment, for demonstration purposes
or
otherwise, and shall return the same to HISS in good condition (reasonable
wear
and tear excepted) upon the termination of this Agreement or HISS's request
therefore. Representative shall be responsible for normal maintenance of all
demonstration units when they are located in the Territory. Representative
shall
provide monthly inventory reports to HISS of any Products or other property
of
HISS, which is in Representative's possession, or in transit to or from
Representative, and shall be responsible for any loss or shortage.
Representative shall keep appropriate and adequate records of any Products
or
other property of HISS shipped to and from its premises under its control or
direction, and shall maintain suitable warehousing facilities where required.
HISS shall have the right, on request, to examine and/or audit all records
pertaining thereto and to conduct a physical inventory on reasonable
notice;
(g) Representative
shall promptly notify HISS of any complaint or claim made or brought against
Representative or HISS with respect to any Product;
(h) Representative
shall promptly notify HISS of all inquiries regarding Products received by
Representative from sources outside the Territory;
(i) Representative
shall avoid any actual or potential conflict of interest with its duties to
HISS
hereunder. Representative shall not represent any other manufacturer or supplier
of equipment competitive with the Products without the prior written consent
of
HISS; and
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(j) Representative
shall attend, at Representa-tive's expense, at least one of HISS's periodic
training sessions per year.
2.4 Duties
of HISS.
During
the term of this Agreement, HISS agrees as follows:
(a) HISS
shall provide Representative with current technical information regarding the
Products. HISS may add or delete Products which it offers for sale from time
to
time in its sole discretion; and
(b) HISS
shall furnish to Representative, without charge, reasonable quantities of
promotional sales literature and brochures, catalogue sheets, price lists and
engineering data and such other information and sales aids as, in HISS's
opinion, are appropriate for use by Representative in soliciting the sale of
Products hereunder, which materials may be used by Representative solely to
support its sales activities on HISS's behalf.
2.5 Commissions.
(a) As
sole
and exclusive commission compensation for Representative's services hereunder,
HISS shall pay Commissions to Representative, at the rates set forth in Exhibit
A attached hereto, on (i) the Net Xxxxxxxx directly invoiced by HISS with
respect to sales of Products to Regular Account customers located in the
Territory, and (ii) the Net Xxxxxxxx invoiced by HISS's Industrial Distributors
with respect to sales of Products for shipment to Regular Account customers
of
Representative located in the Territory, but excluding in each case Net Xxxxxxxx
with respect to sales of Products to House Accounts.
(b) Commission
payments with respect to sales of Products made directly through Representative
shall be made by the fifteenth (15th) day of the calendar month following the
month in which HISS receives payment from its customers.
(d) Each
Commission payment shall be accompanied by a statement setting forth in
reasonable detail the computation of the Commissions being paid, and any
deductions thereto for identifying invoices by number.
(e) HISS
may,
in its sole discretion, allocate Commissions to be shared between two or more
of
HISS's Representatives. Representative shall be notified in writing of HISS's
determination, which shall be final.
(g) If
this
Agreement is terminated by either party, Commissions shall thereafter be
determined and payable in accordance with Section 5.
(h) Any
claim
or dispute Representative may have, which is related to or arises out of the
payment of Commissions hereunder shall be submitted to HISS in writing within
thirty (30) days after Representative knows of, or has reason to know of, the
basis for the claim or dispute. Failure to give notice shall relieve HISS from
any and all liability for such claim or dispute. The provisions of this
subsection shall survive the termination of this Agreement.
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| 2.6 |
Compensation.
|
HISS
agrees to pay Xxxxx Xxxxxxx a sum of $5,000.00 each month beginning on June
1,
2005 and at the beginning of each month thereafter for the life of this
agreement. Xxxxx Xxxxxxx aggress to become a Part-time employee of HISS and
operate a Washington Office for the company. In addition to the monthly
compensation HISS will pay $800 each month during the term of this agreement
as
a portion of rent and overhead. All other expenses must be pre-approved by
HISS.
| 2.7 |
Stock
Option Plan
|
Xxxxx
Xxxxxxx will participation in the ESOP and be granted restricted stock options
at a agreed upon strike price for 20,000 shares per month.
3. Warranties
and Limitations of Liability.
HISS
shall provide to customers solicited by Representative only such limited product
warranties as are contained in its Standard Terms and Conditions of Sale, as
modified from time to time. Representative shall make no representations or
warranties to customers or potential customers inconsistent with or in addition
to those contained in such terms and conditions.
4. Confidential
Information and Trademarks.
4.1 Proprietary
Rights.
Representative
agrees that HISS retains proprietary rights in and to all product
specifications, designs, engineering details, discoveries, inventions, patents,
trade secrets and other proprietary rights relating to the Products (the
"Proprietary Information"). The Products are offered for sale and are sold
by
HISS subject in every case to the condition that such sale does not convey
any
license, expressly or by implication, estoppel or otherwise, to manufacture,
duplicate or otherwise copy or reproduce any of the Products.
4.2 Protection
of Confidential Information.
Represen-tative
agrees to protect the confidentiality of all Confidential Information (including
without limitation the Proprietary Information) with the same degree of care
as
Representative accords to Representative's own confidential and proprietary
information and to use such Confidential Information only for purposes related
to this Agreement; provided, however, that Representative shall not be obligated
to treat information as Confidential Information, if such
information:
(a) Was
rightfully in Representative's posses-sion, or rightfully known to
Representative, prior to its receipt from HISS; or
(b) Is
or
becomes public knowledge without the fault of Representative; or
(c) Is
or
becomes rightfully available to Representative without confidential restriction
from a source having no duty of confidentiality to HISS.
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4.3 Continuation
of Obligations.
The
obligations imposed by Section 4.2 shall continue during the term of this
Agreement and for a period of two (2) years thereafter. Upon termination of
this
Agreement, Representative will return to HISS, within thirty (30) days, all
Confidential Information in written or other tangible form, and all
reproductions, copies, extracts or summaries thereof, in its
possession.
4.4 Trademarks.
HISS
hereby grants Representative the right to use HISS's trademarks solely in
connection with the solicitation of orders for Products hereunder and for such
other purposes as may be approved in advance by HISS. Representative
acknowledges that such trademarks are and shall remain the sole property of
HISS. Representative shall not do or suffer to be done any act or thing that
will in any way impair the rights of HISS in and to any HISS trademark.
Representative agrees not to use or register for use any name or xxxx
confusingly similar to any trademark of HISS. Upon termination of this Agreement
for any reason, Representative agrees to discontinue use of all HISS
trademarks.
5. Term
and Termination.
5.1 Term.
Unless
terminated sooner as herein provided, the term of this Agreement shall be for
a
period of twelve (12) months from the date of this Agreement. Furthermore,
this
Agreement will be automatically renewed for additional twelve (12)-month terms,
unless HISS gives notice of termination of the Agreement to Representative
at
least thirty (30) days’ prior to the expiration of the initial or any renewal
term. Commissions on accounts booked by the representative will continue to
be
paid as long as the accounts are active and generating net billing
revenue.
5.2 Termination
by HISS for Cause.
This
Agreement may be immediately terminated by HISS upon the breach or default
by
Representative of any of the material terms, obligations, covenants,
representations or warranties contained herein, including, without limitation,
Representative's misuse of Confidential Information or the engagement in
activities competitive with the sale of Products by HISS, by giving written
notice of termination and specifying such breach or default.
5.3 Termination
Without Cause.
This
Agreement may be terminated by either of the parties without cause upon written
notice to the other party given at least ninety (90) days prior to the effective
date of termination stated in the notice. In such event, Representative shall
receive Commissions only on Bookings made directly through Representative prior
to the date of termination, which result in payments made for as long as the
bookings generate net billing revenue.
6. Miscellaneous.
6.2 Notices.
All
notices and other communications required or permitted hereunder shall be in
writing and shall be deemed effectively given upon personal delivery or on
the
day sent by facsimile transmission if a true and correct copy is sent the same
day by first class mail, postage prepaid, or by dispatch by an internationally
recognized express courier service, to the proper parties at the appropriate
business addresses.
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6.4 Headings.
The
headings of the several sections of this Agreement are inserted for the
convenience of reference only and are not intended to affect the meaning or
interpretation of this Agreement.
6.5 Counterparts.
This
Agreement may be executed in counterparts, and delivery of a signed counterpart
by facsimile shall constitute valid execution and delivery of this
Agreement.
6.6 Assignment.
Neither
this Agreement, nor any rights or obligations hereunder may be assigned,
delegated or transferred in any manner by Representative without the prior
written consent of HISS. This Agreement shall bind and inure to the benefit
of
any successors or assigns of HISS and to any permitted successors or assigns
of
Representative.
6.7 Entire
Agreement.
This
Agreement, including Exhibits A and B hereto, constitutes the entire agreement
between the parties pertaining to the subject matter contained herein and
supersedes all prior and contemporaneous negotiations, representations,
agreements and understandings of the parties. Except for amendments or
modifications permitted to be made by HISS in its sole discretion, no
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by the party sought to be bound.
6.8 Applicable
Law.
This
Agreement shall be governed by and construed and interpreted in accordance
with
the laws of the State of Florida without regard to any principles governing
conflicts of laws. Any action or proceeding brought under or arising out of
this
Agreement shall be litigated or brought in an appropriate state or federal
court
in the State of Florida. The trade terms under this Agreement shall be governed
by and interpreted in accordance with the provisions of the Uniform Commercial
Code, as adopted in the State of Florida, and shall not be subject to or
governed by the United Nations Convention on Contracts for the International
Sale of Goods.
6.9 Severability.
Should
any provision of this Agreement be determined to be invalid, it should be
severed from this Agreement and the remaining provisions of this Agreement
shall
remain in full force and effect.
6.10 Non-Waiver.
The
failure of either party to enforce at any time any provision or provisions
of
this Agreement shall in no way be considered to be a waiver of such provision
or
provisions, nor shall such failure affect the validity of this Agreement in
any
way. The failure of either party to exercise any such provision or provisions
shall not be construed as a waiver of any continuing or succeeding breach of
such provision, a waiver of the provision itself, or a waiver of any other
right
under this Agreement.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the
date first set forth above.
________________________________
HISS, Inc.
(Sales
Representative)
By:
Xxxxx
Xxxxxxx` By:
Xxxxxxxx X. Xxxxx
Its:
COO
Name:
Xxxxx
Xxxxxxx
Name:_________________________
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EXHIBIT
A
SALES
REPRESENTATIVE AGREEMENT
Dated:
_______________
1.
PRODUCTS
The
HISS
products covered by this Agreement are listed below:
All
HISS
Standard Products and Options (Hardware and Software) listed on the effective
,
2005
2.
COMMISSIONS
SCHEDULE FOR DIRECT SALES
15%
of
the net billing invoice.
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EXHIBIT
B
SALES
REPRESENTATIVE AGREEMENT
Dated:
May 27, 2005
1.
TERRITORY
The
following Territory is hereby assigned to Representative for the sale of HISS
Products as described in this Agreement:
United
States Federal Government, State Governments, Local Governments, and Foreign
Governments non-exclusively
2.
HOUSE
ACCOUNTS
Excluded
from commissions payable for sales in the Territory are sales to the following
House Accounts:
All
accounts not listed in Exhibit B, Item 2 above. HISS assigns exclusivity by
customer accounts. When a sales representative introduces a potential customer
to HISS by providing his name, position and title, the organization that he
is
affiliated with and his email address or telephone number and address, the
potential customer is then entered into our data base. Once this information
is
presented to HISS Marketing, this customer is designated as your exclusive
account for one year from the day you registered him with HISS or as long as
this agreement is in effect, provided that this account places an order with
HISS within the 12 month period after the registration.
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