EXHIBIT 10.11
Agreement No. 109
----
intelitek
Educational Dealer Agreement
THIS AGREEMENT made this 1st day of AUGUST, 1997, between intelitek
of Princeton, NJ, incorporated and organized under the laws of the State
of New Jersey hereinafter referred to as the Company, and LAB
TECHNOLOGIES hereinafter referred to as the Dealer. This contract
supersedes any contract previously entered into between Company and Dealer.
1. PRODUCTS
--------
The term "Products" as used in this agreement includes those
items listed in the attached Exhibit A and such additions and deletions
as may be made by Company from time to time.
2. GRANT OF SELLING PRIVILEGE
--------------------------
Company hereby grants to Dealer the exclusive right to sell the
Company's Products and accessory items to public and private educational
and training agencies or institutions which are organized and operated
for the primary purpose of education/training and which, as part of that
purpose, engage or intend to engage in training using the company's
products in the territory of CO, UT, WY, MT, NM, ID, AZ (the
"Territory"). Dealer understands that no grant or representation of
exclusive rights to sell any customers other than as described above
within any territory has been or is made by Company hereunder.
Additionally, a non-exclusive selling privilege shall include sales to
the United States Government or its agencies, industrial and/or
commercial accounts, or any account using the equipment for the sole
purpose of training within the above described Territory. Company
reserves the right to make direct sales or to appoint other dealers at
any location within or outside the Territory as to all other accounts.
3. UNAUTHORIZED SALES
------------------
If any Dealer makes a sale which is not within the scope of the
selling privilege set forth in Article 2 above, such Dealer may not be
entitled to any discount or commission thereon. Should such a sale or
sales be discovered by Company at any time, Company should be entitled to
a refund or offset (of Company's choice) as to such commission paid or
discount extended by Company, plus an administrative expense fee of
twenty percent of the gross sales price of such unauthorized sale. In
addition to the foregoing, Company shall have the option to terminate
such Dealer's Dealer Agreement immediately upon written notice to such Dealer.
The Authorized exclusive Dealer (if any exists) to whom a
commission would otherwise have been paid on such sale by virtue of the
exclusive selling privilege granted shall be entitled to receive its
commission only upon receipt of payment of offset by the Company. The
foregoing shall be the exclusive remedies of Dealers under this Agreement
for breach of the exclusive selling privilege.
4. AGREEMENT TO SELL
-----------------
Dealer hereby accepts the above right to sell the Products and
agrees to make all sales in accordance with this agreement. Dealer
further agrees to use best efforts to sell and promote the Products and
to provide trained personnel in reasonably sufficient number to
demonstrate, the Products, provide first line service, and meet sales
goals as established by Company and Dealer.
1
5. NO AGENCY CREATED
-----------------
It is agreed that this agreement does not constitute Dealer the
agent or legal representative of Company for any purpose whatsoever.
Dealer is not granted any right or authority to assume or create any
obligation or responsibility, express or implied, on behalf of or in the
name of Company, or to bind Company in any manner or thing whatsoever.
6. RENEWAL AND CANCELLATION
------------------------
This agreement shall be in force for a twelve (12) month period
commencing the date stated previously, and shall govern all transactions
and relations between the parties unless canceled or terminated. Either
party may cancel or terminate this agreement at any time, with or without
cause, by notice in writing, which termination shall be effective thirty
(30) days after receipt of such notice, which shall be deemed received
five (5) after the same has been deposited in the United States mail,
postage prepaid, and sent certified mail.
It is understood that any BONA FIDE customer order which may
have been taken by Dealer prior to receipt of notice of cancellation
shall not be in any way subject to Company's approval and acceptance, and
settlement shall be made on a basis agreeable to both Company and Dealer.
It is agreed that such cancellation or termination will not release
Dealer or Company from any obligation to make payment of any sum which
may be owed to the other at the time of such cancellation.
This agreement will automatically renew upon the expiration of
each one (1) year term for an additional twelve (12) months unless
otherwise canceled or terminated.
7. MERGER
No change, addition, or erasure of any portion of this
agreement (except the filing in of blank lines) shall be valid or binding
upon either party unless specifically initialized or signed by an
authorized representative of each party hereto. This agreement
supersedes all previous agreements between the parties, whether written
or oral, and sets forth the entire agreement between them, and there are
no other agreements, written or oral, between the parties relating to the
subject matter hereof.
8. PRICES AND TERMS.
The Dealer agrees to pay the Company's Dealer net prices F.O.B.
Company's plant, according to the Schedule of Prices, Exhibit A, and
discounts set forth in the attached Exhibit B, which schedules may be
changed from time to time by Company at its sole discretion without prior
notice.
Unless otherwise agreed to and upon satisfactory evidence of
creditworthiness, terms of sale are cash with order or C.O.D. All sales
on accounts shall be net thirty (30) days and shall bear interest at the
lesser of the one and one-half percent (1 1/2%) per month or the highest
amount allowable by law, as per the attached Exhibit C, which schedules
may be changed from time to time by Company and its sole discretion
without prior notice. Dealer shall have the sole responsibility for
collecting, remitting, and accounting for applicable sales, use, or value
added tax applicable to the resale of Products by the Dealer.
Direct orders from customers are subject to credit approval and
acceptance by Company. Commissions on direct customer orders accepted by
Company shall be paid to Dealer [within thirty (30) days after receipt of
payment by Company or forty-five (45) days after shipment]. Commission
on CIM sales made on a direct basis shall be paid on a prorata basis
consistent with the percentage of completion within thirty (30) days of
receipt of payment from the customer.
All shipments (excluding demonstration units to Dealer) shall
be made directly to the end user customer unless other arrangements are
made and agreed to in advance by Company.
2
9. ACCEPTANCE OF ORDERS
--------------------
All orders for Products received from Dealer by Company are
subject to acceptance by Company and Company agrees that it will endeavor
to fill the accepted orders as promptly as practicable, subject, however,
to delays caused by Government, labor or material shortages, strikes,
fires, or any other cause beyond Company's control. Dealer expressly
releases Company from liabilities for any loss or damage arising from the
failure of Company to fill any orders of Dealer.
10. PLACE OF BUSINESS
-----------------
Dealer agrees to maintain a place of business reasonably
satisfactory to Company and Company shall have the right at all
reasonable times during normal business hours to inspect Dealer's place
of business.
11. RIGHT TO NAME
-------------
Dealer is entitled to use the trademarks "spectraLIGHT",
"spectraCAM", "proLIGHT", "Benchman", "SCORBOT" as applied to any
equipment and of the goodwill attached thereto. Said trademark is not to
be used in the name under which the Dealer's business is conducted. If
said trademark is used in any sign or advertising displayed by Dealer,
Dealer will, on termination of this agreement or upon request of Company,
discontinue the use of the trademark in such sign or advertising
displayed by Dealer. Dealer will, on termination of this agreement or
upon request of Company, discontinue the use of the trademark in such
sign or advertising and thereafter will not use the trademark either
directly or indirectly, in connection with its business, or any other
name, title, or expression that so nearly resemble the same as would be
likely to lead to confusion or uncertainty or to agreement is in effect
to use any trademarks owned by Company in connection with the sale or
promotion of the Products, subject to the prior review and approval of
the Company.
12. AGREEMENT NOT ASSIGNABLE
------------------------
This agreement constitutes a personal contract and Dealer may
not transfer or assign this agreement or any right or duty hereunder
without Company's consent.
13. NO IMPLIED WAIVERS
------------------
The failure of either party at any time to require performance
by the other party of any provision hereof shall in no way affect the
full right to require such performance at any time thereafter, nor shall
the waiver by either party of a breach of any provision hereof be taken
or held to be a waiver of any succeeding breach of such provisions, or as
a waiver of the provision itself.
14. CHOICE OF LAW
-------------
This agreement is to be governed by and construed according to
the laws of the State of New Jersey. It is understood, however, that
this is a general form of agreement, designed for the use of the United
States of America, wherever Company may desire to sell Products, and that
any provision herein, which in any way contravenes the laws of any state
or jurisdiction, shall be deemed not to be a part of this agreement. Any
action on or relating to this agreement shall be brought only on a court
of competent subject matter jurisdiction sitting in the State of New
Jersey, and Dealer hereby irrevocably appoints the Secretary of State of
New Jersey as its agent for service or process and consent to the
jurisdiction of the New Jersey Superior Court of Xxxxxx County.
3
15. CHANGE OF MODELS OR DESIGN
--------------------------
Company reserves the right to change the design of any Product
or part thereof at anytime without notice to Dealer. If any such change
is made, there will be no obligation on Company to make such changes upon
any products shipped upon the orders of Dealer, nor shall Company be
obligated to make a similar change on any Product or parts previously
shipped top Dealer, or to install or furnish any other or different parts
that were thereon when shipment was made.
16. WARRANTY
--------
Dealer is not authorized to perform warranty repair work or to
alter, expand, or in any way modify Company's warranty as to products.
Warranty repair work shall only be performed at Company's plant by
Company. Dealer is not authorized to change or modify Company's warranty
terms in any way.
17. EXPORT
------
Notwithstanding any other provision of this agreement, Dealer
will not export, directly or indirectly, any Product, U.S. source
technical data (including computer software) or electronic components
(including computer hardware) acquired from intelitek or any product
utilizing such data or components without first obtaining consent to do
so from itelitek and the Department of Commerce or other agencies of the
U.S. Government when required by applicable statute or regulation.
18. AUTHORITY TO MAKE AGREEMENT
---------------------------
This agreement is not valid or binding until and unless
executed by the President or duly authorized executive officer of Dealer
and Company.
DEALER intelitek
------ ---------
/s/ XXXX XXXXXX /s/
--------------------------- -------------------------
(Signature) (Signature)
PRESIDENT Director
--------------------------- -------------------------
(Title) (Title)
AUGUST 19, 1997 August 1, 1997
--------------------------- -------------------------
(Date) (Date)
4
EXHIBIT C
CREDIT AGREEMENT AND TERMS
--------------------------
Thank you for choosing intelitek as your supplier of Education curriculum
and training system. We look forward to a long and prosperous business
relationship with you.
Please take this opportunity to review the "Terms and Conditions of Sale"
that are attached, as well as the standard credit policies of intelitek.
Your account number and credit limit have been established based on the
information you have previously provided.
Customer Name: LAB TECHNOLOGIES Account No.: L-1000
Amounts due as a result of any and all purchases made by Customer from
supplier will be paid to Supplier on the following terms and conditions.
CREDIT LIMIT: 60,000
TERMS: Due and payable in full within 30 days from the date
of the invoice unless otherwise agreed upon in
writing. Accounts 60 days old will be placed on
prepaid or C.O.D. status. Legal action will be taken
after an account is 90 days old.
LATE PAYMENT: Past due amounts are subject to late payment service
charges of 1 1/2% per month; 18% annual rate.
RETURNS: No returned goods will be accepted without
authorization (RMA numbers can be obtained from our
customer service department). A restocking charge
(10%) will be made on all goods returned unless due
to an error caused by the Supplier.
FAILURE TO PAY
OR INSOLVENCY: Failure by Customer to pay any part of the purchase
price when due, or in the event that proceedings in
bankruptcy, receivership, or insolvency are
instituted by or against Customer for his property,
Supplier may, at its option cause the entire unpaid
balance to become due and immediately payable.
Customer hereby expressly waives any right to action
which may accrue by reason of the entry for taking
possession of or the selling of said materials and
agrees to pay all costs incurred with respect thereto
including service charges and reasonable attorney's
fees and court costs.
THE UNDERSIGNED AGREES TO THE FOREGOING AND ACKNOWLEDGES RECEIPT OF THE
CREDIT TERMS AND CONDITIONS OF SALE AS STATED BY INTELITEK.
PLEASE COMPLETE THE REQUESTED INFORMATION BELOW AND RETURN TO INTELITEK.
Accepted by Customer: Accounts Payable Contact:
By: /s/ XXXX XXXXXX Name:
----------------------- --------------------------
Signature Please Print
PRESIDENT Telephone:
----------------------- ---------------------
Position
Date Accepted: AUGUST 19,1997
---------------
