EX 10(iii)
SALES AGENCY AGREEMENT
THIS AGREEMENT is made as of the 17th day of MARCH, 2000 by and BETWEEN GREEN
DOLPHIN SYSTEMS CORP., (PRINCIPAL) AND GREEN DOLPHIN SYSTEMS (CANADA)
("AGENCY").
1. Exclusive Representation. Principal grants to Agency the exclusive right
to act as Principal s sales representative, to solicit orders for the
Principal s goods, and services ("Products") within the following
geographical
area:
THE COUNTRY OF CANADA ("Territory").
2.. Sales Policies. The prices, charges and terms of sale of the products
("Sales Policies") shall be established by the Principal. The Sales Policies
shall be those currently in effect and established from time to time by the
Principal in its price books, bulletins, and other authorized releases.
Written notice of each Sales Policy change shall be given by the Principal to
the Agency at least thirty (30) day in advance of such change.
3. Orders and Collections. Orders for products solicited by the Agency
shall be forwarded to and subject to acceptance by the Principal. All
invoices in connection with orders to the territory shall be rendered by the
Principal direct to the customers, and full responsibility for all
collections and bad debts rests with the Principal. The Principal agrees to
refer to the Agency for attention all inquiries concerning the Principal s
products received by the Principal from any source or by any means whatsoever
from the Territory or for shipment of products into the territory. The
Principal agrees to promptly furnish the Agency with copies of all
correspondence and documentation between the Company and any customer
covering any products ordered from within or for shipment into the Territory
or sold to a customer within the Territory and to furnish the Agency with a
statement on the fifteenth (15th) day of each month covering the amount of
orders and the amount of invoices for the previous month and the amount of
commission due to the Agency.
4.. Duties. The Purpose of this Agreement is to promote Principal s products
and services in the Territory and the long term goodwill of the Agency. The
Agency agrees to diligently and faithfully work the Territory in an endeavor
to secure business for the Principal and use its best efforts to promote
Principal s products. Principal will use its best efforts to perform and
provide its products in a good, workmanlike and marketable manner, provide
marketing support for the sales effort of the Agency and protect and promote
Agency customer relationships within the territory.
5. Relationship Created. The Agency is not an employee of the Principal for
any purpose whatsoever, but is an independent contractor. Principal is
interested only in the results obtained by the Agency, who shall have sole
control of the manner and means of performing under this Agreement. Principal
shall not have the right to require Agency to do anything which would
jeopardize the relationship of independent contractor between Principal and
Agency, unless otherwise agreed in writing. Agency shall be responsible for
Agency s taxes. All expenses and disbursements incurred by Agency in
connection with performance by Agency or Agency s sales activities shall be
borne wholly and completely by Agency. Agency does not have, nor shall Agency
hold itself out as having any right, power or authority to create any
contract or obligation, express or implied, on behalf of, in the name of, or
binding on the Principal unless Principal shall consent thereto in writing,
excepting to solicit orders as the same are more particularly defined in this
Agreement. Agency shall have the right to appoint and shall be solely
responsible for Agency s own sub agents, salespersons, employees, agents and
representatives who shall be at Agency s own risk, expense and supervision
and shall not have any claim against the Principal for compensation or
reimbursement unless otherwise agreed to in writing between the parties. On
termination of the Agency s right to solicit orders for new business for the
Principal the Agency shall promptly return to the Principal all promotional
material, order forms and supplies provided by the Principal to the Agency
prior to termination.
6. Commission. The Agency s commission rate is: 12%
6.1 Commissions are earned by the Agency on all "accepted orders"
solicited
within, and/or delivered to the Territory, whether the orders are sent in by
the Agency, received by the Principal by the mails, taken at the Principal's
place of business, or otherwise. The Principal has the option of accepting or
rejecting any order solicited within the Territory or any order for delivery
to the Territory, except that an order will be considered an accepted order
for the purpose of commissions, unless the Principal does not ship or invoice
and notifies the Agency in writing of the order or orders rejected by the
Principal within thirty (30) days of the submission of the order to the
Principal whether submitted by the Agency, a Customer or through some other
source. If the order is submitted by mail, the order will be considered
accepted, unless the Principal does not ship or invoice and notifies the
Agency in writing of the Principal's rejection of the order within thirty (30)
days of the mailing of such order by the Agency or the customer or otherwise
to the Principal. Principal shall be entitled to charge back against Agency's
commission a sum equal to the commission paid on orders on which the
Principal has shipped the product, the customer has returned the product and
the Principal has given the customer full refund or credit for the purchase
price on such returned product. Commissions payable to the Agency shall be
computed on the net amount of each invoice rendered for each order or part of
an order on shipment, exclusive of freight and transportation costs, including
insurance, normal and recurring bona fide trade discounts and any applicable
sales or similar taxes. The Agency shall not be charged with or liable for
advertising allowances nor any decrease or reduction of commission based upon
volume or other discounts unless mutually agreed in writing by all parties
prior to acceptance of the order. All commissions payable to the Agency
hereunder shall be due and payable to the Agency on or before the fifteenth
(15th) day of the month immediately following invoicing. In the event of
termination of this Agreement by either party, the Agency shall be paid
commissions on all orders from or deliveries to the Territory which are
substantially attributable in whole or in part to activities or services
performed prior to the effective date of termination, regardless of the
shipment and invoice date, except in the event of a "for cause termination
under Paragraph 7.1 , in which event Commission obligation is limited to
shipments made by Principal prior to the effective date of termination.
6.2 Principal in Principal s sole discretion has the right to split
Commissions on Orders: obtained solely outside the "Territory" and in the
exclusive Territory of another Sales Agency to whom Principal pays Commission
on the Order; deliveries outside the "Territory" to the exclusive Territory
of another Sales Agency to whom Principal pays Commission on the delivery to
the extent that Principal pays Commission to the other Sales Agency; but in
no event shall the Commission payable to Agency herein, be reduced by reason
of the split to less than fifty percent (50%) Of the amount Agency earns
pursuant to Paragraph 6.1 of this Agreement.
7. Term.. This Agreement 'shall continue in force and effect for
(3) years and thereafter from year to year unless the first to occur of the
following events, at which time the Agency's right to solicit new business
shall terminate:
7.l For Cause Termination
7.1.1 Commission of a felony by either party in the course of performance
of the Agreement shall entitle the other to effect immediate termination upon
the giving of written notice.
7.1.2 The election of one party (the aggrieved party) to terminate this
Agreement upon (1) the actual breach or actual default by the other party in
the reasonable performance of the defaulting party s obligations and duties
under this Agreement and (2) the failure of the defaulting party to cure the
same within 15 days (the "cure period") after receipt by the defaulting party
of a good faith written notice from the aggrieved party specifying such breach
or default and (3) provided that the defaulting party has not cured the
default and the aggrieved party may then give written notice to defaulting
party of his or its election to terminate ten (10) days after expiration of
the cure period.
7.2 Without Cause Termination
7.2.l After the first year, on expiration of any one year term, provided
written notice of election to terminate is given in writing to the other party
sixty (60) days before expiration of the existing term.
7.2.2 After the first full year, either party retains the right to
terminate at any time after ninety (90) days written notice to the other
party of election to terminate.
8. General Provisions
8.1 This Agreement may be modified or amended in whole or in part from time
to time only by the mutual written agreement signed by all parties and
delivered by each to the other prior to the effective date of such
modification or amendment. Principal shall save Agency harmless from and
against and indemnify Agency for all liability, loss, costs, expense or
damages whatsoever caused by reason of any of Principal s products (whether
or not defective or covered by warranty) and any act or commission of
Principal or Principal s customers or vendees, including but not limited to
any injury (whether to body, property of personal or business character or
reputation) sustained by any person or organization or to any person or to
property whether from breach of warranty, products liability, infringement or
any patent rights or other rights of third parties and whether from any
violation of municipal, provincial or federal laws or regulations governing
the products or services or their sale which may result from the sale or
distribution of the products by the Agency, and including any act by the
Agency related to the design, alteration, modification or change of the
product supplied by the Principal, except as to modification or change caused
by or assumed in writing by Agency. Principal agrees to include Agency as an
insured in all policies of Principal which provide protection or indemnity
against any liability to customers, consumers or third parties as to any
liability or responsibility above referred to. All provisions of this Agency
Agreement, including the provisions of this Paragraph 8, shall be subject to
and shall be enforced and construed pursuant to the laws of the Province
('Agency s Province") where the Agency s principal office is located, as set
forth below. Principal hereby appoints as its agent for service of process
in
connection with any action brought by Agency against Principal hereunder the
Interior Minister of Canada of Agency s province of residence at the time
such action is brought. In the event of litigation, prevailing party shall be
entitled to recover interest as may be provided by law, court costs and
reasonable attorney s fees.
8.2 If and in the event any portion of this Agreement is void or voidable
under any applicable local or provincial law, such void or voidable
provisions shall not affect the balance of the Agreement which shall remain
fully enforceable as it said void or voidable provision had been detected by
mutual consent of the parties.
8.3 The parties hereto agree that this Agency Agreement constitutes and
expresses the whole agreement of the parties with reference to the exclusive
agency and compensation for and respect to such agency created hereby and all
promises, undertakings, representations, agreements and understandings and
arrangements with reference to such agency representation and compensation
are herein merged.
9. Notices. Any notice, demand or request required or permitted to be given
hereunder shall be in writing and shall be deemed effective twenty four (24)
hours after having been deposited in Canada Post mail, postage prepaid,
registered or certified and addressed to the addressee at its main office, as
set forth below. Any party may change its address for purposes of this
Agreement by written notice given in accordance herewith.
DATE: MARCH 17, 2000
(PRINCIPAL) :GREEN DOLPHIN SYSTEMS (AGENCY) :GREEN DOLPHIN
SYSTEMS(CANADA)
/S/ /S/
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ADDRESS: 0000 XXXX XXXXXX XXXXX ADDRESS: 00 XXXXXXX XXXXX XXXXX
XXXXXX, XXXXXXXXX ETOBICOKE, XXXXXXX
00000 X0X 0X0
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