EXHIBIT 10.4
WHOLESALE SALES AGREEMENT
This Agreement made this day of ___ day of ______________, 2001(by and between
IDS Cellular, Inc., a Florida corporation, with principal place of business at
0000 X.X. 0xx Xxxxxx, Xxxxx X00, Xxxx Xxxxx, Xxxxxxx 00000, hereinafter called
the "Company", and Regal Marketing International, Inc., a Florida corporation
with principal place of business at 00 Xx. Xxxxx'x Xxx, Xxxxxxxxxx, Xxxxxxx,
00000. Hereinafter called the "Sales Organization."
1. Services.
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The Company engages the Sales Organization, and the Sales
Organization agrees to act as a sales agent for the Company for the sale of AT&T
Wireless Mobile Phones and Phone Plans (hereinafter referred to together as
"phones").
2. Compensation.
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(a) Company will compensate Sales Organization with a
commission on each phone sold in accordance with the schedule set forth on
Exhibit A.
(b) Compensation shall be calculated and paid in arrears on a
weekly basis commencing at the end of the third full week from the date hereof.
3. Orders and Credit Terms.
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(a) The Company shall have the option of accepting or
rejecting any order or orders taken by the Sales Organization. Sales
Organization further understands that AT&T has its own creditworthiness and
other criteria for accepting or rejecting orders. No commissions shall be
payable hereunder except on phone orders approved by Company and AT&T and
actually shipped by Company and received, accepted and paid for by Purchaser.
(b) The Company reserves the exclusive right to grant credit
and establish credit terms.
4. Expenses.
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(a) The Company shall finish the Sales Organization with demos
and brochures for the phones, all of which the Sales Organization agrees to
return to the Company and to be liable for any failure to return any portion
thereof at the request of the Company.
(b) Sales Organization's expenses of selling in the ordinary
course of business are the responsibility of Sales Organization.
5. Duties of Sales Organization.
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The Sales Organization agrees to:
(a) Work diligently to secure business for the Company.
(b) Assist the Company in the collection of amounts owed by
customers for the Products sold on credit to the extent reasonable.
(c) Submit to the Company such reports as it may reasonably
request form.
(d) Provide all potential customers with all Company contact
information.
6. Terms and Termination.
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(a) The term of this Agreement shall be for a period of one
(1) year from the date hereof.
(b) Either party shall have the right to terminate this
Agreement prior to the expiration of the term upon Thirty (30) days written
notice.
(c) In the absence of a 30-day written notice prior to the
expiration of the term, this Agreement shall be automatically renewed from year
to year subject to the terms and provisions as contained herein.
7. Reports.
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(a) The Company agrees to furnish Sales Organization with a
quarterly statement on or before the last day of the month Wowing the close of
the quarter covering the amount of sales for the previous quarter, and the
amount of commissions earned by Sales Organization for that quarter. Any balance
due Sales Organization above the percent of commission already paid weekly shall
be payable at the time the statement is rendered.
(b) In the event of termination of services, the Sales
Organization shall receive commissions on all orders and sales as provided in
Section 2, even though the shipments thereof are not made until after such
termination of services.
8. Exclusivity.
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The Sales Organization shall not carry additional competing
lines without full knowledge and consent of the Company.
9. Independent Contractor.
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The Sales Organization will serve as an independent contractor
and be responsible to pay all applicable Social Security, withholding, and other
national and international taxes, licensing fees and other governmental charges
if any. The Sales Organization will bear all expenses incurred in its sales
endeavors except for those for which the Company agrees in writing to pay. If
Sales Organization has any agents or employees, it shall be responsible for all
taxes and insurance or such agents or employees, including any workers'
compensation and/ or employer's liability insurance as may be usual and
customary and/or required under local law or practice.
10. Legal Matters.
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(a) Sales Organization shall not assign its interest under
this Agreement without prior written consent of the Company.
(b) The Sales Organization will not make and shall not have
authority to make any representations, warranties or commitments binding the
Company without the prior written consent of the Company.
(c) Sales Organization shall indemnify and hold the Company
harmless from any and all liability, cost, legal fees and/or damages associated
with or arising from Sales Organization's activities in connection with this
Agreement.
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(d) Any and all proprietary information and knowledge gained
by Sales Organization or its employees, agents, principals, officers or
directors from the relationship created hereby, including but not limited to
customer lists and contacts, trade secrets and product-related knowhow, shall
remain confidential and cannot be used upon termination of his Agreement.
(e) Sales Organization or its employees, agents, principals,
officers or directors (if applicable) shall not compete with the Company for a
period of one year after termination of this Agreement.
11. Non-Waiver.
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The parties hereto agree CIM failure by either party to
strictly enforce any provision of this Agreement shall not constitute a waiver
or an estoppel, not preclude either party from subsequent strict enforcement of
any or all provisions hereof.
12. Attorneys' Fees.
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In any action, litigated or arbitrated, declaratory or
otherwise arising out of this Agreement, the successful party shall be awarded
reasonable attorney's fees to be paid by the losing party.
13. Entire Agreement/Amendments.
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The parties here to agree that this Agreement constitutes and
expresses the whole agreement of the parties with reference to the reference to
the representation and compensation for or in respect to the Sales
Organization's efforts on behalf of the Company, and all promises, undertaking,
representations, agreements, and understandings and arrangements entered into
the parties herein. No alterations or variations of the terms of this Agreement
shall be valid unless made in writing, dated, and signed by both parties.
14. Severability/Continuity.
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If any provision of this Agreement shall be found invalid or
unenforceable toy extent the remainder of this Agreement or the application
thereof to other situations, shall not be affected thereby. This Agreement shall
be binding and inure to the benefit of the parties and their personal
representatives, successors and assigns.
15. Governing Law.
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This Agreement shall be governed by the laws of the State of
Florida and the United States of America, without regard to conflict of laws
provisions.
IN VVITNESS WHEREOF, the parties hereto have executed this contract and
agreement effective as of the day and year first above written.
COMPANY: SALES ORGANIZATIONS:
IDS Cellular, INC. Regal Marketing International, Inc.
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Xxxx Xxxxx, President Xxxx X. Xxxxxx, President
0000 X.X. 0xx Xxx Xxxxx X-00 0 Xx. Xxxxx'x Xxx
Xxxx Xxxxx, Xxxxxxx 00000 Xxxxxxxxxx, Xxxxxxx 00000
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EXHIBIT A
COMPENSATION SCHEDULE
The following sets forth the compensation to Sales Organization for each phone
sold.
1. For each phone sold to an end user on a plan in excess of Forty
Dollars ($40,00) per month, Sales Organization shall receive a one-time
commission of One Hundred Twenty Dollars ($120.00)*
2. All Sprint sales that exceeds Fifty Dollars ($50.00) monthly end
user plans, Sales Organization will be paid a commission of Fifty Dollars
($50.00). This commission will be paid Thirty (30) to Thirty-five (35) days
after the end of the month.
3. Any and all 'charge backs' on phones sold by Sales Organization
shall be deducted from the current payment of commissions. Indirect cost of the
phone, currently at $128.00 per phone, also shall be deducted in such cases in
the event that Sales Organization does not retrieve the physical phone from the
charge back customer. On Sprint PCS commissions only the commission paid will be
charged back.
4. Weekly payments of commissions shall be paid at Seventy Percent
(70%) of the face value of the commission (less applicable charge backs,
indirect phone cost, and a Ten Percent (10%) holdback for charge backs), to be
paid by check to the Sales Organization each week on Friday. Commission's earned
Friday thru Thursday will be included in this weekly check, Commissions will
become owed after the end- user receives delivery of their phone. The balance of
AT&T commissions due will be paid Forty days (40) after the months end.
5. Holdbacks in the amount of Ten Percent (10%) of the total commission
will be deducted and held for a One Hundred Eighty (180) day period after which
they will be released on a weekly basis less any charge back amounts due. IDS
Cellular reserves the right to offset any commissions with charge backs at any
time. IDS Cellular reserves the right to raise the percentages amount of
holdbacks or reserves, if the charge backs warrant it.
6. All applications run through AT&T Wireless credit system have a
Sixty Cent ($0.60) per app charge. A carrying charge of Three Percent (3%) per
month will be applied on the outstanding factoring monies.
*Current AT&T Commissions are subject to change. If any change in AT&T
commission occurs IDS Cellular reserves the right to reduce commissions with
notice going forward. *
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