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SALES REPRESENTATION AGREEMENT
SALES REPRESENTATION AGREEMENT is made and entered into as of MARCH 1. 2002, by
and between HAND INNOVATIONS, INC., a Florida corporation (hereinafter "the
Company"); and OJI Surgical Incorporated/Xxxxx Xxxxx (hereinafter "Sales
Representative").
WITNESSETH:
1. The Company is in the business of manufacturing medical devices and products
for sales to physicians, hospitals, medical clinics and others.
2. The Sales Representative wishes to sell on a commission basis for the Company
its products.
3. The Company hereby appoints the Sales Representative as an authorized sales
representative of the Company's products.
4. The term of this Agreement is a effective as of the effective date written
above and shall continue for a period up to one (1) year, ending on December 31,
2002. Thereafter, it shall automatically renew for an additional one (1) year
period. Notwithstanding the term of this Agreement, either party may terminate
this Agreement upon thirty (30) days' written notice to the other party.
5. The Sales Representative will be the exclusive sales representative for the
Company's products in the territory depicted in Addendum A. The Sales
Representative shall not sell, attempt to sell or solicit business from any
customers located outside of the exclusive territory without the prior written
consent of the Company.
6. During the term of this Agreement, the Sales Representative shall use its
best efforts to sell the Company's products at the prices, terms and conditions
that shall be established by the Company. All sales shall be on forms provided
or approved by the Company. No sales orders shall be effective unless approved
in writing by the Company. The Sales Representative shall forward all sales
orders to the Company for approval within twenty-four (24) hours of completion.
7. The Sales Representative shall use and employ only such sales and promotional
materials as shall be provided or approved by the Company. The Sales
Representative shall not make any representation, warranty or guarantee
regarding the Company's products or services or alter, enlarge or limit any
order without the express written consent of the Company. The Company shall
approve all returns in writing.
8. The Sales Representative shall service each account and customer in its
territory and shall cooperate with the Company in the promotion of the Company's
products. The Sales Representative shall notify the Company immediately upon
receiving any complaint or return request from any customer.
9. The Sales Representative shall receive commissions as outlined in Addendum B,
on all sales revenues received by the Company FROM the sales by the Sales
Representative of the Company's products, excluding any charges for sales tax,
freight or delivery, Commissions shall be paid by the Company to the Sales
Representative on or before the 20th day of each month, based upon revenues
billed by the Company during the preceding calendar month, less all returns,
rebates or other allowances granted customers of the Sales Representative during
said calendar month. The Company shall be solely responsible for collection of
revenue; however, at the Company's request, the Sales Representative shall
assist the Company in collection of accounts receivable from the Sales
Representative's customers. The Company, in its sole and absolute discretion,
shall approve all sales on credit to each customer and elect to have any of its
products sold to any customer on a C.O.D. basis. The Sales Representative shall,
upon request of the Company, secure from any customer such credit information as
the Company may request from time to time.
10. Every month following the initiation of this Agreement, the Company shall
provide the Sales Representative with a report showing all sales, revenues,
commissions and other pertinent information relating to the Sales
Representative's customers.
11. The Company shall notify the Sales Representative of any customer complaints
received; and upon request of the Company, the Sales Representative shall
respond to any said complaints and report to the Company the nature of the
complaint and its resolution.
12. The Company shall be solely responsible for design, development, production
and furnishing of its products. The Company shall secure such patents,
trademarks, service marks or other intellectual property protection, as the
Company deems necessary in its sole discretion. The Company shall indemnify and
hold the Sales Representative harmless against any and all claims whatsoever
made against the Sales Representative by any party alleging infringement of
patents, trademarks or service marks resulting from the sale by the Sales
Representative of any of the Company's products, or arising from any warranty
claims or product liability claims asserted the Sales Representative, so long as
the Sales Representative is not at fault for any such claims.
13. The Company shall from time to time, furnish the Sales Representative
product samples, consignment inventory, catalogs, marketing of promotional
literature and other material, which the Company in its sole discretion, deems
necessary for the promotion and sale of its products. Upon termination of this
Agreement, the Sales Representative shall return to the Company any and all such
materials, which remain in its possession within ten (10) business days.
14. Any product, which the Sales Representative obtains for delivery to its
customers, shall be at the sole risk of the Sales Representative and it shall be
responsible for any damage or destruction of such products.
15. The Sales Representative shall not assign this Agreement. This Agreement may
be assigned by the Company to any of its affiliates, subsidiaries, parents,
successors or other assigns.
16. The Sales Representative is acting as an independent contractor and is not
and shall not hold itself out as a partner, joint venturor, investor,
shareholder, affiliate or in the case of an individual, an officer, director or
employee of the Company. The Sales Representative shall be solely responsible
for payment of all federal and state taxes arising from its activities,
including, but not limited to, all income and payroll taxes for itself and its
employees. The Sales Representative shall indemnify and hold the Company
harmless from and against any and all claims of whatever kind and nature
asserted against the Company which arise out of any warranty, representation or
action made or undertaken by the Sales Representative which is outside the
purview of this Agreement and/or is not approved by the Company.
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17. Sales Representative agrees that it shall (i) take reasonable steps to
protect the Confidential Information (as defined below) of the Company, using
methods at least substantially equivalent to the steps it takes to protect its
own proprietary information, but not less than a reasonable standard, during the
Term of the Agreement and for a period of one (1) year following expiration and
termination of this Agreement and (ii) prevent the duplication or disclosure of
Confidential Information, other than by or to its employees who must have access
to the Confidential Information to perform Sales Representative's obligations
hereunder, provided that Sales Representative shall make its employees aware of
the restrictions of this section.
18. For purposes of this Agreement, "Confidential Information" means all
confidential and proprietary information of the Company, including, without
limitation, information relating to: the business; trade secret information;
client, investor, customer and supplier lists, and contracts or arrangements;
financial information (including financial statements, budgets and projections);
market research and development procedures, processes, techniques, plans and
results (including inconclusive results); all information which may be included
by the party in any patent, trademark or copyright application or amendment
thereof or defense or litigation with respect thereto; design, manufacturing,
marketing, licensing and distribution strategies, plans or projections;
investment or acquisition opportunities, plans or strategies; product
composition pricing information or policies; royalty or licensing arrangements
computer software, passwords, programs or data; and all other business related
information which has not been publicly disclosed by the Company, whether such
information is in written, graphic, recorded electronic, photographic, data or
any machine readable form or is orally conveyed to or developed by the Company;
provided that Confidential Information shall not include information which: (i)
at the time of disclosure is generally known in the business and industry in
which the Company is engaged; or (ii) after disclosure is published or otherwise
becomes generally known in such business or industry through no fault of the
Sales Representative.
19. [intentionally omitted]
20. The Sales Representative recognizes and acknowledges that in the event of a
breach or default of the terms and conditions of this Agreement, the damages to
the Company may be impossible to ascertain and such party shall not have an
adequate remedy at law, in the event of any such breach of default in the
performance of the terms and provisions of this Agreement, including, but not
limited to, a breach of paragraph 17 - 19, the Company shall be entitled to
institute and prosecute the proceedings in any court of competent jurisdiction,
either at law or in equity, and without the necessary to post a bond or prove
special damages, to enforce the specific performance of the terms and conditions
of this Agreement, and/or to obtain damages. Such remedies shall however be
cumulative and nonexclusive and shall be in addition to any other remedies,
which the Company may have under this Agreement of law. By signature below the
Sales Representative and Associate Sales Representative (s) agree to be
personally bound by the provisions of paragraph 17-22 of this Agreement.
21. In the event of any litigation arising out of or related to this agreement,
the prevailing party shall be entitled to all cost of litigation, including any
reasonable attorney's fees at both the trial and appellate levels.
22. The laws of the State of Florida shall govern this Agreement. This Agreement
shall be considered to have been entered into at Miami, Florida. Sales
Representative consents to the jurisdiction of all state and federal courts
located in Miami-Dade County, Florida.
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23. This Agreement contains the entire agreement between the parties and shall
not be modified or amended, except by writing signed by both parties.
IN WITNESS WHEREOF, the parties have signed and sealed this Agreement effective
the date and year first above written.
Company:
HAND INNOVATIONS INC., a Florida corporation
By:
V.P. of Sales & Marketing
Sales Representative (s):
1. 2.
Xxxxx Xxxxx
Associate Safes Representative (s):
1. 2.
3. 4.
Sales Representative Business Address:
Xxxxx Xxxxx
0JI Surgical, Inc.
0000-X XX Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxx 00000
000-000-0000
000-000-0000
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ADDENDUM A
GEOGRAPHICAL LISTING
Oregon
Southwest Washington: Xxxxx &Cowlitz Counties only
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XXXXXXXX X
COMMISSION STRUCTURE
PRODUCTS
"Metacarpal Intramedullary Fixation System"
"Distal Radius Fracture Plate"
ITEM SOLD AT LIST PRICE
Sales Representative commission 22% on all devices listed above.
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