Exhibit 10.37
[FIELDWORKS LETTERHEAD]
SALES REPRESENTATIVE AGREEMENT
This non-exclusive Sales Representative Agreement ("Agreement") is made as
of the date of execution by FieldWorks, as recorded on Page 6, ("Execution
Date") by and between
Company Name:
Address:
City, State, Zip Code:
Voice: FAX:
("Representative"), and FieldWorks, Incorporated, located at 0000 Xxxxxxx Xxxxx,
Xxxx Xxxxxxx, XX 00000-0000 ("FieldWorks").
Representative desires to promote the sales of certain products
manufactured and sold by FieldWorks and FieldWorks desires to have
Representative act as its representative in the sale of such products. In
consideration of these promises and the covenants contained in this Agreement,
the parties agree as follows.
1. Appointment of Representative
1.1 FieldWorks hereby appoints Representative as a non-exclusive sales
representative for FieldWorks' products set forth on Exhibit A ("Products")
as FieldWorks may amend from time to time upon notice of Representative.
Representative shall be entitled to promote the sale of the Products only
in the territory and/or markets as defined in Exhibit B.
1.2 Representative agrees to use its best efforts to promote the sale
of the Products and agrees to abide by all reasonable rules and regulations
FieldWorks establishes for its sales representatives from time to time.
Representative agrees that, during the term of this Agreement,
Representative will not sell, promote or offer for sale, products which
directly compete with or substitute for the Products.
1.3 Representative will solicit and take orders for the Products and
transmit the orders in writing to FieldWorks in the format approved by
FieldWorks. FieldWorks reserves the right to accept, reject, modify or
cancel in whole or in part any or all orders received and/or accepted for
the Products, in its sole discretion. Representative's authority under this
Agreement is limited to the solicitation and transmission to FieldWorks of
orders, and Representative has no right or authority to make binding
quotations, to accept any orders or to enter into any contracts or
agreements whatsoever for or on behalf of FieldWorks. Representative is an
independent contractor and not an agent or employee of FieldWorks.
1.4 Representative understands that FieldWorks' Products will be
marketed to and used by a wide variety of customers and in various market
segments. Representative understands that other sales organizations may be
operating in the same territory and/or markets as Representative.
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SALE REPRESENTATIVE AGREEMENT
2. Commissions
2.1 For sales made by Representative for delivery within
Representative's territory and/or market, FieldWorks shall pay
Representative the commission rate set forth in Exhibit D. The commission
shall become due and payable on the last day of the calendar month
following the month in which FieldWorks received payment in full for the
Product.
2.2 Representative's commission rate and schedule, set forth in
Exhibit D, is based on the Net Sales Price of the Products sold. As used
herein, "Net Sales Price" shall mean the actual price received by
FieldWorks after any adjustments for credits, returns, pricing adjustments,
discounts, allowances, taxes, shipping charges, non-recurring or other
factors which reduce the amount actually received by FieldWorks.
Non-discountable items defined in the then current FieldWorks Commercial
Price List are also non-commissionable. Commission will be paid only once
on each Product that is sold.
2.3 In the event of any dispute respecting commissions, commission
splitting, or any other commission issue, final resolution of the matter
shall be determined by FieldWorks' Sales Management. Shares of the full
commission shall be awarded by FieldWorks based on the determination of the
Sales Management, in his/her sole discretion, based upon the sales and
support efforts of the parties involved.
2.4 On sales of any Products, Representative's commission is set forth
in Exhibit D. In the case of sales more than $400,000 USD per single
Purchase Order, FieldWorks in its sole discretion is entitled to increase
customer discount only in order to get customer sale. In such cases,
agreements on the amount of commission must be made prior to FieldWorks'
acceptance of the applicable order. In the event no written agreement is
reached prior to acceptance of the order, the commission will be awarded at
a minimum rate of 5%.
2.5 Sales to federal government organizations under FieldWorks' GSA
Authorized ADP Schedule Pricelist will be commissioned at a rate defined in
Exhibit D.
2.6 Representative acknowledges that FieldWorks may, in its sole
discretion, pay commissions to Representative prior to receiving full and
final payment from the customer. Representative agrees that, should
FieldWorks not receive full payment for related Product shipped (such as
returns or charge backs), FieldWorks shall be entitled to deduct such
commission paid from other commissions to be paid to Representative, at
FieldWorks' sole discretion. In the event that there is no commission for
FieldWorks to deduct from, FieldWorks is entitled to seek full
reimbursement. Representative agrees to cooperate and work with FieldWorks
and the customer to secure the business and payment.
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SALES REPRESENTATIVE AGREEMENT
3. Sales Objective
3.1 Representative understands and agrees that the establishment and
achievement of a Sales Quota is the essence of this Agreement, and that
failure by Representative to satisfy its obligation under this Section
shall constitute a material breach of this Agreement, entitling FieldWorks
to terminate this Agreement. As a result, Representative agrees that it
will obtain orders which are accepted by FieldWorks in which the dollar
amount received by FieldWorks totals at least the corresponding dollar
amount specified in Exhibit C, as may be revised by the parties for renewal
terms of this Agreement.
4. Marketing and Business Obligations
4.1 Representative agrees (a) to submit quarterly to FieldWorks a six
month rolling sales forecast by model, (b) to follow up on leads supplied
by FieldWorks within 5 days from the receipt thereof, (c) to actively sell
and promote FieldWorks products.
4.2 Representative agrees to initially purchase or lease one or more
model of the FW7000 Series or FW5000 Series to be used in sales and the
promotion of the Products. Representative and FieldWorks will split 50-50
the costs for the up-keep of the demonstration equipment which includes
cosmetic appearance, factory upgrades and any other product revisions that
may occur during the term of this Agreement.
4.3 Representative agrees (d) to employ sufficient appropriately
trained personnel at Representative's expense to represent and sell the
Product adequately, and (e) to maintain Products in a clean, safe and
professional condition.
4.4 Representative agrees to, and hereby does, indemnify FieldWorks,
its officers, directors, employees and agents against and hold each of
them harmless from any and all claims, causes of action, damages,
liabilities, costs and expenses (including attorneys fees) arising from
any breach by Representative of any provision of this Agreement.
5. Term and Termination
5.1 Unless earlier terminated as provided in this Agreement, this
Agreement shall commence as of the Execution Date and shall terminate one
(1) year thereafter. This Agreement may be renewed for additional one (1)
year terms upon written agreement of the parties which agreement must
include mutual agreement as to the Sales Quota applicable to such renewal
term. If the parties fail to agree in writing upon a renewal of this
Agreement prior to the expiration of this Agreement, this Agreement shall
automatically expire and terminate without further notice to either party.
5.2 Either party can terminate this Agreement, with or without cause,
on a thirty (30) days prior written notice to the other party.
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SALES REPRESENTATIVE AGREEMENT
5.3 If either party defaults in the performance of any material
provision of this Agreement, then the non-defaulting party may give written
notice to the defaulting party and, if the default is not remedied within
thirty (30) days following receipt of such notice, the Agreement will be
terminated (material breaches of this Agreement shall include, without
limitation, failure to meet the sales quota).
5.4 FieldWorks shall pay Representative commission on sales of
Products resulting from orders taken by Representative during the 30-day
notice period provided for in Section 5.2, provided that FieldWorks has
received payment in full for such orders within three months after the date
of termination hereof. Section 6 shall survive any termination or
expiration of this Agreement.
6. Confidentiality
6.1 Representative agrees that in the course of business dealings with
FieldWorks, certain valuable, proprietary and confidential information of
FieldWorks is likely to become known to Representative, including, without
limitation, such information as equipment and software design information,
documentation, prospect and customer lists, key employee names, pricing,
discount, and commission structures, production volumes, and similar
information (hereinafter "Proprietary Information"). Representative agrees
that the Proprietary Information is the sole and exclusive property of
FieldWorks and shall be treated as confidential. Representative shall not
disclose the Proprietary Information in any manner without the prior
written approval of FieldWorks and shall take reasonable measures to
prevent any unauthorized disclosure by its employees, agents, contractors
or consultants during the term hereof including appropriate individual
nondisclosure agreements. Representative may use the Proprietary
Information during the term of this Agreement only as permitted or required
for Representative's performance hereunder.
6.2 The obligations set forth in Section 6.1 shall not apply to any
information which is or becomes known to the general public through no
fault of Representative, or which Representative can prove by written
records was known to Representative at the time of its receipt thereof from
FieldWorks, or which has been rightfully obtained by Representative from a
third party. The provisions of Section 6 shall survive any termination or
expiration of this Agreement.
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SALES REPRESENTATIVE AGREEMENT
7. General
7.1 This Agreement, including the Exhibits hereto which are
incorporated herein by reference, constitute the entire Agreement between
the parties and supersedes all prior and contemporaneous Agreements,
understandings, negations and discussions, whether written or oral.
7.2 Any dispute between the parties arising out of or in connection
with this Agreement, if not resolved by mutual agreement between the
parties, shall be settled by binding arbitration under the rules of the
Commercial Arbitration Rules of the American Arbitration Association. In
the event of any such dispute or difference, either party may give to the
other party written notice that the matter shall be settled by arbitration.
Such arbitration shall be conducted in Hennepin County, Minnesota. An award
by arbitration may be entered as final judgment in any court having
jurisdiction in the matter or application may be made to such a court for
acceptance of the award and for an order of compliance.
7.3 Representative shall pay all expenses incidental to the
performance of its duties hereunder, including payroll taxes, salaries,
wages or commissions for employees, transportation and travel expenses and
the expense of maintaining such office as Representative shall deem
desirable.
7.4 All modifications, amendments, and/or waivers to this Agreement,
less exhibits, shall be in writing and signed by both parties. No failure
by either party to take any action or assert any right hereunder shall be
deemed to be a waiver of such right in the event of the continuation or
repetition of the circumstances giving rise to such right.
7.5 In no event shall FieldWorks be liable to Representative, a
customer or any other party for loss of profits, indirect, special,
consequential or incidental damages arising out of this Agreement even if
FieldWorks shall have been advised of the possibility of such potential
loss or damage by Representative or Representative's customers. In no event
shall FieldWorks be liable for any damages in excess of the aggregate
amounts actually paid by Representative to FieldWorks under this Agreement.
7.6 Representative may not assign, delegate or transfer any of its
rights or obligations under this Agreement, without the prior written
consent of FieldWorks. Any attempted assignment, delegation or transfer by
Representative without such consent shall be void.
7.7 If any provision of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, such provision shall
be deemed stricken from the Agreement and the remainder of the Agreement
shall continue in full force and effect.
7.8 This Agreement does not make either party the employee, agent or
legal representative of the other for any purpose whatsoever. Neither party
is granted any right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the
other party. Each party is acting as an independent contractor.
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SALES REPRESENTATIVE AGREEMENT
7.9 Notices permitted or required to be given hereunder shall be
deemed sufficient if given by (a) registered or certified mail, postage
prepaid, return receipt requested, (b) private courier service, or (c)
facsimile addressed to the respective addresses of the parties as first
above written or at such other addresses as the respective parties may
designate by like notice from time to time. Notices so given shall be
effective upon (1) receipt by the party to which notice is given, or (2) on
the fifth (5th) day following mailing, whichever occurs first.
7.10 If the performance of this Agreement or any obligation hereunder
(other than the payment of monies due owing hereunder) is prevented,
restricted or interfered with by reason of any event or condition beyond
the reasonable control of such party (including without limitation acts of
State or governmental action, riots, disturbance, war, strikes, lockouts,
slowdowns, prolonged shortage of energy or other supplies, epidemics, fire,
flood, hurricane, typhoon, earthquake, lightning and explosion), the party
so affected shall be excused from such performance, only for so long as and
to the extent that such a force prevents, restricts or interferes with the
party's performance and provided that the party affected gives notice
thereof to the other party and uses diligent efforts to remedy such event
or conditions.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives below.
FIELDWORKS INCORPORATED
------------------------------------------------ -------------------------------------------------
(Representative Company Name)
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(signature of Authorized Representative) (signature of Authorized Representative)
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(print Authorized Representative name) (print Authorized Representative name)
------------------------------------------------ -------------------------------------------------
(title) (title)
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(Execution Date) (date)
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SALES REPRESENTATIVE AGREEMENT
EXHIBIT A
The Products
Agreement includes
SALES REPRESENTATIVE AGREEMENT
EXHIBIT B
Territory/Market Boundaries
The Products described in Exhibit A may only be sold and shipped by SR to the
following geographic territory and/or markets:
Inclusions:
The Territory includes:
The Market Segment includes:
Exclusions:
All OEM sales are excluded under the commission schedule shown in EXHIBIT C
under this Agreement. Any other applicable market segments found by
Representative are to be discussed with FieldWorks as they arise for
consideration for representation.
SALES REPRESENTATIVE AGREEMENT
EXHIBIT C
Sales Quota
For the consecutive Twelve (12) month period beginning on the Execution
Date, the total U.S. Dollar amount sold by Representative and assigned as Quota
for the period is
$
------------------------------------
The Quota is distributed throughout the period as follows:
--------------------- ------------------ ------------------ ------------------- ------------------ ----------------------
QTR - QTR - QTR - QTR - QTR - Quota Total
--------------------- ------------------ ------------------ ------------------- ------------------ ----------------------
$ $ $ $ $ $
--------------------- ------------------ ------------------ ------------------- ------------------ ----------------------
Example: The following illustrates how to complete the Quota commitment table
for an agreement with an Execution Date of April 25th, 1999 with a Quota total
of $400,000:
Record the appropriate calendar quarters (1, 2, 3, 4) beginning at
| the Execution Date.
|
| /--------- Record the corresponding year.
| /
/ /
------/---/- ------------ ------------ ------------ ------------ -------------
/ /
QTR 2 -1999 QTR 3 -1999 QTR 4 -1999 QTR 1 -2000 QTR 2 -2000 Quota Total
------------ ------------ ------------ ------------ ------------ -------------
$ 70,000 $ 90,000 $ 110,000 $ 100,000 $ 30,000 $ 400,000
----/------- ------------ ------------ ------------ ------------ ---------\---
/ \
| Record the total quota commitment for the agreement period.--------
|
Record the dollar amount of the Quota Commitment for the corresponding quarter.
SALES REPRESENTATIVE AGREEMENT
EXHIBIT D
Commission/Discount Schedule
Quantity for End Users is per single Purchase Order, or written volume
purchase commitment over defined period of time.
=====================================================================================================================
FW2000 Series *
======================================================================================================================
Sales to End Users
---------------------------------------- -------------------------------------- --------------------------------------
Quantity Customer Discount Representative Commission
---------------------------------------- -------------------------------------- --------------------------------------
1-9 0% 6%
---------------------------------------- --------------------------------------
10-24 7%
---------------------------------------- --------------------------------------
25-49 9%
---------------------------------------- --------------------------------------
50-99 12%
---------------------------------------- -------------------------------------- --------------------------------------
100+ (quote) (Negotiable)
======================================================================================================================
Sales to System Integrators/Resellers
---------------------------------------- -------------------------------------- --------------------------------------
(any quantity) 15% 5%
======================================== ====================================== ======================================
======================================================================================================================
FW5000 Series *
======================================================================================================================
Sales to End Users
---------------------------------------- -------------------------------------- --------------------------------------
Quantity Customer Discount Representative Commission
---------------------------------------- -------------------------------------- --------------------------------------
1-9 0% 6%
---------------------------------------- --------------------------------------
10-24 7%
---------------------------------------- --------------------------------------
25-49 9%
---------------------------------------- --------------------------------------
50-99 12%
---------------------------------------- -------------------------------------- --------------------------------------
100-249 (quote) (Negotiable)
======================================================================================================================
Sales to System Integrators/Resellers
---------------------------------------- -------------------------------------- --------------------------------------
(any quantity) 15% 5%
======================================== ====================================== ======================================
======================================================================================================================
FW7000 Series **
======================================================================================================================
Sales to End Users
---------------------------------------- -------------------------------------- --------------------------------------
Quantity Customer Discount Representative Commission
---------------------------------------- -------------------------------------- --------------------------------------
1-9 0% 10%
---------------------------------------- --------------------------------------
10-24 7%
---------------------------------------- --------------------------------------
25-49 9%
---------------------------------------- --------------------------------------
50-99 12%
---------------------------------------- -------------------------------------- --------------------------------------
100-249 14% (Negotiable)
======================================================================================================================
Sales to System Integrators/Resellers
---------------------------------------- -------------------------------------- --------------------------------------
(any quantity) 15% 5%
======================================== ====================================== ======================================
* Representative Commission is 6% on GSA Orders for FW2000 & FW5000 Series
product.
** Representative Commission is 10% on GSA Orders for FW7000 Series product.
SALES REPRESENTATIVE AGREEMENT
EXHIBIT E
Modifications, Amendments, and/or Waivers
The modifications, amendments, and/or waivers, as delineated below, shall apply
to this Agreement:
(Reference Section numbers (e.g., "Section 1.2", "Section 2.1 (last
sentence)", Section 2.3 (3rd sentence, etc.), and describe changes in terms
of "Add:", "Replace:", "Delete:", "Change to read:", "Add at the end of
Section:", etc.)
